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THE 

FIRST    PART 

OF   THE 


fniStitute^  of  tlje  Hato^  of  ^nglanti; 

OR,    A 

COMMENTARY  UPON  LITTLETON. 

NOT  THE  NAME  OF  THE  AUTHOR  ONLY,  BUT  OF  THE  LAW  ITSELF. 


Quid  te  vana  j'uvant  miserce  ludibria  r.hartce  ? 

Hoc  lege,  quod  possis  dicere  jure, — meum  est.  Mart. 

Major  hcereditas  venit  unicuique  nostrum  a  jure  et  legibus,  quam  a  parentihus.         Cicero. 


H.^C  EGO  GRAND^VUS  POSUI  TIBI,  CANDIDE  LECTOR, 

Authore   EDWARDO    COKE,    Milite. 


REVISED    AND    CORRECTED, 

With  Additions  of  NOTES,  REFERENCES,  and  PROPER  TABLES, 
By  FRANCIS  HARGRAVE  and  CHARLES  BUTLER,  Esqrs.  of  Lincoln's  Inn, 

INCLUDING    ALSO 

The  NOTES  of  Lord  Chief  Justice  HALE  and  Lord  Chancellor  NOTTINGHAM; 

^  AND 

An  ANALYSIS  OF  LITTLETON,  written  by  an  unknown  Hand  in  1658-9. 


By  CHARLES  BUTLER  ESQ.  one  of  His  Majesty's  Counsel. 


FIRST  AMERICAN, 

iFrom  the  NCnetfcutli  aontjon  IStrttCou,  corrrcteti. 


IN  TWO  VOLUMES. 


VOL.    IL 


PHIL  A  D  EL  PHI  A : 
ROBERT    n.    SMALL,    MINOR    STREET. 

185  3. 


I 

I 


T 


KITE  &  WALTON.  PRINTERS. 


THE 

FIRST    PART 


Pf-] 


OF  THE 


INSTITUTE    S 


OF   THE 


LAWS  OF  ENGLAND.  (1) 


THE     THIRD    BOOK. 

Chap.  1.  Of  Parceners.  Sect.  241. 


PARCENERS  are  of  two  sorts,  to  wit;  parceners  according  to  the 

course  of  the  common  law,  and  parceners  according  to  the  custome. 

Parceners  after  the  course  of  the  common  law  are,  where  a  man,  or  woman, 

seised  of  certain  lands  or  tenements  in  fee  simple  or  in  taile,  hath  no  issue 

''  but 


(l)In  the  vellum  MSS.  of  Littleton,  belonging  to  the  public  library  at  Cam- 
bridge there  is  the  following  argument  or  introduction  to  this  third  book  : 

"En  cest  tierce  liver  ascum  chose  sera  dit  a  toy,  mon  fitz,  de  parceners,  de 
"  iointenantez,  de  tenantez  in  comen,  de  estatez  de  terrez  et  teuementez  sur 
"condition,  de  discentez  que  tollount  entrez,  de  continuell  clayme,  de  releissez 
"  et  confirmationz,  de  garrantiez  liniall  et  collaterall  et  de  garrantiez  que  com- 
"  ensont  per  disseisin,  de  attornament,  de  snrrenderons,  de  discontinuance,  de 
"remitterez,  de  tenant  per  elegit,  de  tenant  j^er  estatut  merchant,  de  tenant  pet- 
"  estatut  de  la  staple,  &c."  ,    „T■^^^         t  u 

On  this  addition  to  the  printed  copies  of  Littleton,  sir  William  Jones,  who 
kindly  favoured  me  with  the  readings  from  the  two  Cambridge  manuscripts, 
writes  this  observation.— "  It  is  very  remarkable,  that  in  this  argument  a 
"  Chapter  is  promised  concerning  surrenders,  of  which  Littleton  has  not  es- 
"  pressly  and  separately  treated.  The  word  snrrenderons,  which  is  abbreviated 
"  by  the  transcriber,  seems  completely  to  have  puzzled  a  former  owner  ot  the 
"  manuscript.  He  says  in  the  margin,  ceste  parole  est  en  auter  fragment  que 
'^ieo  av:  Quaere  ce  que  il  signifie.  Since  then  surrenders  are  mentioned  in 
"two  manuscripts  as  one  of  the  heads  of  the  third  book ;  it  is  not  improbable, 
"  that  the  author  intended  to  have  written  a  distinct  chapter  concerning  them, 
"  as  he  did  write  concerning  tenants  hy  ELEGIT,  and  by  statute  mer- 
"  CHANT  and  STAPLE."— See  Sect.  324,  where  Littleton  refers  to  a  Chapter  ou 
elegits. — [Note  1.] 

5E6040 


0^ 


163.  a.  163.  b.]        Of  Parceners.     L.  3.  C.  1.  Sect.  241. 

hut  daughters,  and  dieth,  and  the  tenements  descend  to  the  issue  (2),  and 
the  daughters  enter  into  the  lands  or  tenements  so  descended  to  them,  then 
they  are  called  parceners,  and  he  hut  one  heir  to  their e  ancestor  (Parce- 
ners solonque  le  course  del  common  ley  sont,  lou  home,  ou  feme,  seisie  de 
certaine  tcrres  ou  tenements  in  fee  simple  ou  en  taile,  n'ad  issue  forsque 
files,  et  devie,  et  les  tenements  discendont  a  les  issues,  et  les  files 
entront  en  les  terres  ou  tenements  issint  discendus  a  eux,  donques  els 
sont  appels  parceners  et  quant  a  files  els  sont  (1)  *  forsque  un  heire 
a  lour  ancestor) :  And  they  are  called  parceners;  because  hy  the  writ, 
which  is  called  breve  de  participatione  facienda,  the  laiv  will  constraine 
them,  the  partition  shall  he  made  among  them.  And  if  there  he  tivo 
daughters  to  ivhom  the  land  descendeth,  then  they  he  called  two  parce- 
ners;  and  if  there  he  three  daughters,  they  he  called  three  parceners  ; 
and  four  daughters,  four  parceners  ;  and  so  forth  (2)  f. 

^UR  author  having  treated  in  his  two  former  bookes,  first  of 
estates  of  lands  and  tenements,  and  in  his  second  booke  of 
tenures  whereby  the  same  have  beene  holden,  now  in  his  third 
booke  doth  teach  us  divers  things  concerning  both  of  them ;  as, 
1.  The  qualities  of  their  estates.  2.  In  what  cases  the  entry  of 
him  that  right  hath  may  be  taken  away.  3.  The  remedies,  and 
in  what  cases  the  same  may  be  prevented,  or  avoyded.  4.  How 
a  man  may  be  barred  of  his  right  for  ever,  and  in  what  cases  the 
same  may  be  prevented  or  avoyded. 

For  the  first,  he,  having  spoken  of  sole  estates,  divideth  the 
quality  of  estates  into  individed  and  conditional!.  Individed,  into 
coparcenary,  joyntenancy,  and  tenancy  in  common. 
Coparcenary  into  parceners  by  the  S^^  common  law,  ri63. 1 
and  parceners  by  the  custome;  and  be  beginneth  his  L  ^-  J 
Vide  Sect.  3So.     third  book  with  parceners  claiming  by  descent,  which, 

comming  by  the  act  of  law  and  right  of  bloud,  is  the  noblest  and 
worthiest  means  whereby  lands  do  fiill  from  one  to  another. 
Conditional!,  into  conditions  expresse  or  in  deed,  and  conditions 
in  law.  Conditions  in  deed,  into  gages;  which  he  divideth  into 
vadia  mortua  and  vadia  viva.  Vadia  mortua,  so  called  because 
either  money  or  land  may  be  lost,  :  and  viva,  because  neither 
money  nor  land  can  be  lost,  but  both  preserved.  Then  speaketh  he 
of  descents,  whereby  the  entry  of  him  that  right  hath  may  be  taken 
away.  And  next  to  that  of  the  remedy  how  to  prevent  the  same, 
viz.  by  continuall  claim.  Then  he  teacheth,  how  a  man,  having  a 
defeasible  or  an  imperfect  estate,  may  perfect  and  establish  the 
same  by  three  meanes,  viz.  by  release,  by  confirmation,  and  at- 
tournment,  where  that  is  requisite.  Having  spoken  of  a  descent, 
being, an  act  in  law  which  taketh  away  an  entry,  he  doth  then 
speake  of  a  discontinuance,  the  act  of  the  party  whereby  the 
entry  of  them  that  right  have  shall  be  taken  away.  And  next  unto 
that  he  teacheth  in  what  case  the  same  may  be  avoided  by  remit- 
ter. After  he  had  treated  of  descents  and  discontinuances  which 
take  away  entries,  but  bar  not  actions,  lastly,  he  setteth  forth 
the  learning  of  warranties,  (a  curious  and  cunning  kind  of  learn- 
ing 

*f  Theae  are  notes  1,  and  2,  of  163.  b.  in  the  IZth  and  lith  editions. 

(2)  In  L.  and  M.  and  in  Rob.  it  is  daughters  instead  of  issues. 

(1)  *See  below  note  3. 

(2)  I  in  L.  and  M.  and  in  Roh.  an  d:c.  comes  in  here. 


L.  3.  C.  1.  Sect.  241.     Of  Parceners.         [163.  b.  164.  a. 

ing  I  assure  you)  whereby  both  entry,  action,  and  right  may  be 
barred,  and  the  remedies  how  they  may  be  prevented  before 
they  fall,  and  in  what  cases  they  may  be  avoyded  after  they  be 
fallen.  And  thus  have  you  an  account  of  the  thirteene  severall 
chapters  of  his  third  booke.  And  now  his  method  being  under- 
stood, let  us  heare  what  our  author  will  say  unto  us  concerning 
parceners. 

"  Et  quanta  files  els  sont  forsque  vn  Jieire  a  lour  [a]  ancesfer."  [«]  Bract,  lib.  2. 
This  is  false  printed  ;  for  the  originall  is,  et  quanque  files  els  sont,  ^?'^S'  5^'  *^j 
els  sont  parceners,  et  sont  jorsque  un  heire  a  lour  auncestor  (6).    ub.  5.  fo.  443. 

Brit.fo.  58.  112. 

"  Parceners."  [6]  Jus  descenait  quasi  uni  hceredi  propter  juris  12^  183)  184, 
unitatem,  sicut  sunt  plures  filiar,  &c.     Et  xihi  omnes  simul  et  in  ^^^^  ifb '5^03.  9 
soUdum  hceredes  sunt,  i^lures  cohceredes  sunt  quasi  uniim  corpus,  n.  6.  ca.  47. 
propter  unitatem  juris  quod  hahent.     Whereupon  it  followeth,  Glan.  li.  7.  ca.  3. 
that  albeit  where  there  be  two  parceners  fc]  they  have  moities  ;^„^'^^^\°V^^o 

,  11  1  1111  L^J  iiraet.  11.  z. 

m  the  lands  descended  to  them,  yet  are  they   both   but  one  fo.  66.  76.  Flet. 
heyre ;  and  one  of  them  is  not  the  moiety  of  an  heire,  but  both  uLi  supr.  Brit, 
of  them  are  but  unus  ha-res.  f^^  dTntbera 

And  it  is  to  be  observed,  that  there  is  a  diversity  betweene  a  [e]  vide  Sect.  8. 
descent,  which  is  an  act  of  the  law,  and  a  purchase,  which  is  an  vers.  fin. 
act  of  the  party.    [<:/]  For  if  a  man  be  seised  of  lands  in  fee,  and  ['^J  I^^%\  \*^'  ^" 
hath  issue  two  daughters,  and  one  of  the  daughters  is  attainted  ^ih.  L  ca.  47.' 
of  felony,  the  father  dicth  both  daughters  being  alive ;  the  one 
moitie  shall  descend  to  the  one  daughter,  and  the  other  moitie 
shall  escheat.    But  if  a  man  make  a  lease  for  life,  the  remainder 
to  the  right  heires  of  ^4.  being  dead,  who  hath  issue  two  daughters, 
whereof  the  one  is  attainted  of  felony ;  in  this  case  some  have 
said,  that  the  remainder  is  not  good  for  a  moitie,  but  voyd  for 
the  whole,  for  that  both  the  daughters  should  have  beene  (as 
Littleton  saith)  but  one  heire  (4). 

[164.  ~1       B®"  A  man  makes  a  gift  in  taile,  reserving  two  (Post.  196.  b.) 
a.     J   shillings  rent  to  himselfe  during  his  life,  and  if  he  die 
his  heire  within  age  then  reserving  a  rent  of  twentie 
shillings  to  his  heires  for  ever ;  he  dieth  having  issue  two  daugh- 
ters, the  one  of  full  age,  the  other  within  age  :  in  this  case  the 
donee  shall  hold  by  feulty  onely  insomuch  as  the  one  daughter  as 
well  as  the  other  is  his  heire,  and  both  of  them  (as  Littleton  saith) 
make  but  one  heire,  ergo,  his  heire  is  not  within  age,  neither  is  his 
heire  in  that  case  of  full  age.     But  if  the  reservation  had  been, 
"  and  if  he  die,  his  heire  neither  being  within  age,  nor  of  full  age, 
"  &c."  in  this  ca.se  the  reservation  had  beene  good.     And  if  it 
doth  not  begin  in  his  next  heire,  it  shall  never  begin  as  this  case  is, 
for  that  the  precedencie  is  not  performed,     [e]  But  yet  if  one  of  [e]  Temps  E.  1. 
them  be  of  age,  and  the  other  within  age,  she  shall  have  her  age  ^ge,  128.  8  E.  2. 
and  other  priviledges  and  advantages  that  an  heire  within  age  shall  oq  e  *^™'7°  ' 

44  E.  3.  Age,  47.       26  Ass.  65.       13  E.  3.  Age,  51.       28  Ass.  22.       29  Ass.  25.  57. 
34  H.  6.     4  Ass.  17. 

have ; 

(3)  The  words  are  as  here  corrected  by  lord  Coke  both  in  L.  and  M.  and  in 
Roh. 

(4)  See  ant.  25.  b.  26.  b.  and  post.  196.  b.  374.  b.  Here  lord  Hale  intro- 
duces the  following  note. — Doneein  tail  on  condition  not  to  discontinue.  Donee 
has  issue  two  daughters.  One  discontinues.  The  donor  may  enter.  R.  26 
Eliz.  C.  B.  sir  W.  Moore's  case.     Hal.  MSS.— [Note  2.] 


164.  a.]  Of  Parceners.       L.  3.  C.  1.  Sect.  2^:1. 

have ;  and  wlien  they  are  demandants,  for  the  nonage  of  the  one 

If]  FIeta,lib.5.    the  paroll  shall  demurre  against  them  both  (1).  [/]  Sunt  autem 

ca.  9.  et  lib.  6.     jylures participes  quasi unmn  corpus  in  eo  quod unum  jus hahent ; 

(1  Co.  ]"03.  ^t  oportet  quod  corjms  sit  integrum,  et  quod  in  miUa  parte  sit  de- 

2  Ro.  Abr.  41(5.)  fectus.     And  when  the  right  heire  doth  claime  by  purchase,  he 

must  be  (say  they)  a  compleat  right  heire  in  judgement  of  law  (2). 

And   therefore  if  lands  be  given  to  a  man  and  to  the  heires 

females  of  his  bodie,  and  he  hath  issue  a  son  and  a  daughter, 

and  dieth,  the  daughter  shall  have  the  land  by  descent ;  but  if  a 

remainder  be  limited  to  the  heires  females  of  the  bodie  of  /.  S. 

and  he  hath  issue  a  son  and  a  daughter,  his  daughter  shall  never 

take  it  by  purchase,  for  that  she  is  not  heire  female  of  the  body 

of  /.  S.  because  he  hath  a  son. 

If  a  man  give  lands  to  another,  and  to  the  heires  males  of  his 
body,  upon  condition,  that  if  he  die  without  heire  female  of  his 
bodie,  that  then  the  donor  shall  re-enter,  this  condition  is  utterly 
voyd  (3),  for  he  cannot  have  an  heire  female,  so  long  as  he  hath 
an  heire  male. 

And  as  they  be  but  one  heire,  and  yet  severall  persons;  so 
have  they  one  entire  freehold  in  the  land,  as  long  as  it  remaines 
M  10  E.  4.         undivided,   in   respect  of  any    stranger's  prcecipe.      [g]    But 
17  E.  .3.  46.         betweene  themselves  to  many  purposes  they  have  in  judgement 
(Mo.  60.)  Qf  la^   severall  freeholds ;  for  the   one    of  them    may  infeoffe 

[/i]  37  H.  6.  8.  another  of  them  of  her  part,  and  make  liverie.  [/i]  And  this 
19H.  6.  45.  coparcenarie  is  not  severed  or  divided  bylaw  by  the  death  of 
(   oa .       .  a.j     ^^y  ^|.  ^jjg^^ .  |-Qj,  -f  Qjjg  (jjg^  jjgj.  pj^j.^  shall  descend  to  her  issue, 

and  one  prcecipe  shall  lie  against  them,  for  they  shall  never  joyne 
as  heires  to  severall  ancestors  in  any  action  ancestrell,  but  when 
one  right  descends  from  one  ancestor  :  and  ihenpropter  unitatem 
Juris,  though  they  be  in  several  degrees  from  the  common  an- 
cestor, yet  shall  they  joyne.  But  the  issues  of  severall  copar- 
ceners, because  severall  rights  descend,  shall  never  joyne  as 
heires  to  their  mothers ;  and  yet  when  they  have  recovered,  a 

Vid.  Sect.  313.    writ  of  partition  lieth  betweene  them. 

[/]  7  E.  3.  30. 34.       For  example,  [i]  If  a  man  hath  issue  two  daughters,  and  is  dis- 

48  E.  3.  14. 

24  E.  3.  13.     F.  N.  B.  221.     35  H.  6.  23.     27  E.  3.  89.     31  H.  6.  14.  b. 

seised, 

(1)  But  in  the  writ  de  partitione  faciendd  the  younger  sister  shall  not  have 
her  age  against  the  elder.     Post.  171.  a. — [Note  3.] 

(2)  In  a  former  note  I  have  much  at  length,  and  as  I  fear  tediously,  en- 
deavoured to  support  lord  Coke  in  this  doctrine.  Ant.  24.  b.  note  3.  But 
since  the  writing  of  that  note  a  case  has  been  published,  in  which  the  court 
of  king's  bench,  after  three  arguments,  decided  against  applying  the  rule  to  a 
tcill.  See  Willes  and  others  v.  Palmer  and  others,  5  Burr.  2615.  In  another 
case  also,  which  was  three  times  argued,  the  court  of  exchequer,  as  I  under- 
stand, refused  to  apply  the  rule  to  a  marriage-settlement.  Evans  on  demise  of 
Burtenshaw  v.  Weston,  determined  in  a  special  verdict  in  Scaccar.  Mich.  1774, 
or  Hill.  1775.  This  latter  case  had  been  previously  determined  in  B.  R.  in  a 
case  reserved  in  an  ejectment  in  which  Mr.  Burtenshaw  was  defendant,  and 
there  too  the  case  was  argued  three  times.  In  both  courts  the  judgment  was 
against  Mr.  Burtenshaw.  But  the  question  on  the  construction  of  heirs  female 
of  the  bodij,  considered  as  words  of  purchase,  was  only  a  secondary  point;  and 
whether  it  was  debated  in  B.  B.  or  not,  I  am  not  at  present  informed.  After 
such  authorities,  it  can  be  scarcely  necessary  to  guard  the  reader  against  in- 
cautiously adopting  my  private  ideas. — [Note  4  ] 

(3)  As  to  effect  from  a  condition's  being  void,  see  post.  206.  a.  &  b. 


L.  3.  C.  1.  Sect.  211.     Of  Parceners.       [164.  a.  164.  b. 

seised,  and  the  daughters  have  issue  and  die,  the  issue  shall 
joyne  in  a  praecipe:  because  one  right  descends  from  the  ances- 
tor :  and  it  maketh  no  difference,  whether  the  common  ancestor, 
being  out  of  possession,  died  before  the  daughters  or  after,  for 
that  in  both   cases   they  must  make  themselves  heires  to  the 
grandfather  which  was  last  seised,  and  when  the  issues  [k]  have  [k]  37  H.  6.  8. 
recovered   they   are   coparceners,   and    one  prsecipe   shall   lie  ^g^E^s^ie^lT. 
against  them.     And  likewise  if  the  issues  of  two  coparceners,  (g  c^.  86.  Post. 
which  are  in  by  severall  descents,  be  disseised,  they  shall  joyne  196.  a.  .364.  b.) 
in  assise.     But  in  the  same  case  if  the  two  daughters  had  beene 
actually  seised,  and  had   beene   disseised,  after  their  deceases 
the  issues  shall  not  joyne;  because  severall  rights  descended  to 
them  from  severall  ancestors  :  and  yet  when  they  have  severally 
recovered,    they  are  coparceners   (4),   and   one  prcecipe   lieth 
against  them,  and  a  release  made  by  one  of  them  to  the  other 
is  good.     And  so  note  a  diversitie  inter  descensum  in  capita,  et 
in  stirpes. 

And  the  statute  of  Gloucester,  cap.  6,  made  anno  G  Edw.  1. 
speaketh  si  home  murge,  &c.  if  a  man  dieth  ;  so  as  that  statute 
extendeth  not  but  where  one  dieth,  and  hath  divers  heires,  (F.  N.  B.195.H.) 
whereof  one  is  son  or  daughter,  brother  or  sister,  nephew  or 
neeee,  and  the  others  be  in  a  further  degree,  all  their  heires 
from  henceforth  shall  have  their  recoverie  by  writ  of  mort- 
dauncestor.     And  this  seemeth  to  me  to  be  the  common  law; 

for  Bracton,  who  writ  before  this  statute,  saith,  f/l  in  casu  ciim  ^.^''^^^t.  lib.  4. 

'      .  ,  .  .  7  "-  ■*  •    "j    J      254.  b.     Brit. 

sit  assisa  mortis  antecessoris  conjumjenaa  cum  consangmnitate,  ^^j   ^g^^  jgg^ 

non  eritpostea  recurrendum  ad  prmcipe  de  consanguinitate,  sed  &,  17s.  204. 

ad  assisam  mortis  ;  quia  persona,  quce  propuinquior  est,  etfacit  Fleta,  lib.  5. 

assisam,  et  trahit  ad  se  personum  et  gradum  remotiorem  ut  uhi  l^^^^^^  '       ' 

potius procedat  assisa  qudm  prsecipe,  quia  id,  quod  est  magis 

remotum,  non  trahit  adse  quod  est  magis  junctum,  sed  e  contrario 

in  omni  casu.      And   herewith  agreeth  the  most   of  our  [m]  j-„(]i9e.  3. 

bookes ;  and  two  coparceners  shall  have  a  writ  of  ayel,  and  by  tit.  Joyndre  in 

their  count  suppose  the  common  ancestor  to  be  grandfather  to  t^-^^^'^^'^^^  34 

the  one,  and  great  grandfather  to  the  other  (5).  27  E.  3.  89. 

48  E.  3. 14.     24  E.  3.  13.     F.  N.  B.  221.     Register.      Vide  32  E.  1.      Joindre  ia 
Action,  34.     13  E.  3.  ibid.  29.     Temps  E.  2.  ib.  35,   30  E.  1.  ibid.  36.  25  H.  6.  23. 

I  have  beene  the  longer  herein,  for  that  this  inheritance  of  co- 
parceners is  the  rarest  kind  of  inheritance  that  is  in  the  law. 

Furthermore  it  is  to  be  observed  that  herein  also  in  case  of  co- 
parceners, [n]  sometimes  the  descent  is  in  stirpes  (viz.)  to  stockes  [»]  Bracton, 
or  roots;  and  sometimes  in  capita,  to  heads.     As  if  a  man  hath  jBritLrcap.  71. 
issue  two  daughters  and  dyeth,  this  descent  is  in  capita,  viz.  that  j>leta,  lib.  5. 
every  one   shall  inherit   alike,  Littleton   here    saith.  cap.  9.^et  6. 
r  164.1   But  if  a  man  hath  issue  two  daughters,  and  J3@°^  the  ''"l'-  ■^''• 
|_     b.     J   eldest  daughter  hath  issue   three  daughters,  and   the 
youngest  one  daughter,  all  these  foure  shall  inherit ; 
but  the  daughter  of  the  youngest  shall  have   as  much  as   the 
three  daughters  of  the  eldest,  ratione  stirpium.  and  not  ratione 
capitum,  for  in  judgement  of  law  every  daughter  hath  a  several 
stocke  or  root. 

Also  if  a  man  hath  issue  two  daughters,  and  the  eldest  hath 
issue  divers  sonnes  and   divers  daughters,  and  the   youngest 

hath 


(4)  Pee  the  like  as  to  jointenants,  post,  188. 

(5)  See  F.  N.  B.  197.  B. 


164.  b.]  Of  Parceners.  L.  3.  C.  1.  Sect.  241. 

hath  issue  divers  daughters,  the  eldest  son  of  the  eldest  daugh- 
ter shall  onely  inherit ;  for  the  descent  is  not  in  capita,  but  all 
the  daughters  of  the  youngest  shall  inherit,  and  the  eldest  son 
is  coparcener  with  the  daughters  of  the  youngest,  and  shall 
have  one  moitie  (viz.)  his  mother's  part;  so  that  men  descending 
of  daughters  may  be  coparceners,  as  "well  as  women,  and  shall 
joyntly  implead  and  be  impleaded,  as  is  aforesaid. 
\o\  20  E.  2.  [p]  If  there  be  two  coparceners,  and  the  one  bring  a  ratio- 

Nuper  ob.  14.      nahili  parte  or  a  miper  ohiit  against  the  other,  the  defendant 
F.  N.^B.  197.       claime  by  purchase,  and  disclaime  in  the  blood,  the  plaintiffe 
■  shall  have  a  mortdauncester  against  her  as  a  stranger  for  the 

whole  (1). 


Bract,  lib.  2.  "  Parceners  are  of  two  sorts."       Here  Littleton  doth  divide 

fe.  66.  71,  Ac.  ------ 

Brit.  ca.  71. 
Fleta,  li.5.ca.  9. 


fe.  66.  71,  Ac.      parceners  ;  and  herewith  do  agree  the  ancient  books  of  law 

Brit.  ca.  71  ^  '  ° 


"And  they  are  called  parceners."  Parceners,  participes, 
et  dicuntur participes,  quasipartis  capaces,  sive purtem  capientes; 
quia  res  inter  eas  est  communis  ratione  plurium  personarum,. 
This  tenancie  in  the  ancient  books  of  law  is  called  adsequatio, 
and  sometime  familia  herciscunda  (2),  an  inheritance  to  be 
divided;  and  many  times  parceners  are  called  coparceners. 

"  Breve  de  participatione  facienda."     This  is  false  printed  (3), 

and   should  be  Be  j^a'tione  facienda  (4),  a  writ  whereby  the 

|j)]  Regist.  coparceners  are  compelled  to  make  partition,     [p'j  Item  est  alia 

Orig.  76.  316.       actio  mixta,  qiice  dicitur  actio  familise  herciscundoe  ;  et  locum 

Tj'^f'^'l-  habet,  inter  eos  qui  communem  hahent  hereditatem,  &c.    Et  locum 

Bnt.  ubi  sup.  '  .,-*.  ,  -,  ,.         .         ,  ' 

Flet.  ubi  sup.       habet,  et  videtur,  inter  cohoeredes,  ubi  agitur  de proparte  sororum  ; 

Bract,  ubi  sup.     vel  inter  alios,  ubi  res  inter  partes  et  cohceredes  dividi  debeat, 

to.  443.  b.    ^{(-ni  giifif^  jilures  sorores,  quas   sunt  quasi  unus  hceres,  vel  inter 

plures  fr aires,  qui  sunt  quasi  unus  hceres  ratione  rei  quce  divisi- 

bilis  est  inter  p lures,  muscidos,  &c. 

(Ant.  32.  a.  "  Of  lands  or  tenements."     It  is  to  be  considered  of  what 

150,  151.)  inheritances  daughters  shall   be  coparceners,  and   how  and  in 

what  manner  partition  should  be  made  between  them.  Wherein 
it  is  to  be  observed,  that  of  inheritances  some  be  entire  and 
some  be  severall :  againe,  of  entire,  some  be  divisible,  and 
some  be  indivisible.  And  here  it  appeareth  by  Littleton,  that 
parceners  take  their  appellation,  because  they  are  compelled  to 
make  partition  by  writ  of  partitione  facienda ;  where,  note, 
that  Littleton  alloweth  well  to  finde  out  the  true  derivation  of 
words,  as  often  hath  been  and  shall  be  observed. 

If  a  villeine  descend  to  two  coparceners,  this  is  an  entire 
inheritance  ;  and  albeit  the  villeine  himselfe  cannot  be  divided, 
yet  the  profit  of  him  may  be  divided;  one  coparcener  may 
have  the  service  one  day,  one  weeke,  &c.  and  the  other  another 
day  or  weeke,  &c.  And  for  the  same  reason  a  woman  shall  be 
endowed  of  a  villeine,  as  before  it  appeareth  in  the  Chapter  of 

Dower 

(1)  See  post.  175.  242.  a. 

(2)  See  the  verbe  hercisco  or  ercisco  used  ant.  86.  a. 

(3)  But  in  L.  &  M.  and  in  Rob.  it  is  the  same. 

(4)  Monsieur  Bouard  derives  this   writ  from  the   capitulars  of  the  first 
French  kings.     1  Hou.  Littl.  318. 


L.  3.  C.  1.  Sect.  241.     Of  Parceners.         [164.  b.  165.  a. 

Dower (5).     Likewise  an  advowson  is  an  entire  inheritance;  [q]  [q]  13  e.  2.  tit. 
and  yet  in  effect  the  same  may  be  divided  betweene  coparceners,  Q^'^'".  imp.  170. 
for  they  may  divide  it  to  present  by  turnes(6).  I,,  ^'y'^^'     9 

Mirror,  cap.  2.  sect.  17. 

A  rent  charge  is  entire,  and  against  common  right;  [y]  yet  [r]  44  E.  3.  tit. 
may  it  be  divided  betweene  coparceners,  and  by  act  in  law  the  Partic.  6.  &  tit. 
tenant  of  the  land  is  subject  to  severall  distresses,  and  partition  c2^H^6^foi  n 
may  be  made  before  seisin  of  the  rent.  Ant.  148.  a.) 

Entire  inheritances  not  divisible,  we  finde  divers  in  our  bookes ; 
and  some  inheritances  that  are  divisible,  and  yet  shall  not  be 
parted  or  divided  betweene  coparceners,  as  hereafter  shall  appeare. 

[s]  If  a  man  have  reasonable  estovers,  as  housebote,  heybote,  [«]  2  E.  2.  tit. 
&c.  appendant  to   his  freehold,  they  are  so  entire  as  they  shall  Dower,  123. 
not  be  divided  betweene  coparceners.     [<]  So  if  a  corody  incer-  [q  17  E.  2. 
taine  be  granted   to  a  man   and  his  heires,  and  he  hath  issue  Nuper  obiit,  12. 
divers  daughters,  this  corodie  shall  not  be  divided  betweene  s^^'^f ' *^^^' ^^' 
them;  but  of  a  corodie  certaine  partition  may  be  made.  Dier,  153. 

[ii]  Homage  and  fealtie  cannot  be  divided  betweene  coparce-  [«]  17  E.  3.  72. 
ners(7).    [?<;]So  a  pischarie  incertaine,  or  a  common  saunsnoni-  t'"]  13  E.  "• 
t?-(e(8),  cannot  be  divided  betweene  coparceners,  for  that  would  Fieta,  lib.  5. 
be  a  charge  to  the  tenant  of  the  soile. — [j^JThe  lord  Mountjoy,  cap.  9. 
seised  of  the  mannor  of   Canford  in  fee,  did  by  deed  indented  '-f-'o^^v"  ^^ . 
and  inrolled  bargaine  and   sell   the   same  to  Browne  in  fee,  in  comitem  de 
which  indenture  this  clause  was  contained.     Provided  ahcayes,  Huntingdon 
and  the  said  Browne  did  covenant  and  grant  to  and  with  the  ?*  Seignior 
said  lord  Mountjoy,  his  heires  and  assignes,  that  the  lord  Mount-  /^yj^  j^^j 
joy,  his  heires  and  assignes,  might  dig  /or  ore  in  the  lands  {lohich 
were  greate  toasts)  jHircell  of  the  said  mannor,  and  to  dig  turfe 
also  for  the  making  of  aUome.     And  in  this  case  three  poynts 
were  resolved  by  all  the  judges.     First  that  this  did  amount  to 
a  grant  of  an  interest  and  inheritance  to  the  lord 

[165.~|   Mountjoy,  to  digge,  &c.    Secondly,  that  B@°"notwith- 
a.     J   standing  this  grant,  Browne  his  heires  and  assignes 
might  dig  also,  and  like  to  the  case  of  common  sauns 
nomher.     Thirdly,  that  the   lord  Mountjoy  might   assigne  his  (Ant.  122.  a. 
whole  interest  to  one,  two,  or  more;  but  then,  if  there  be  two  or  ^r?f"?'^i^^^-^'^ 
more,  they  could  make  no  division  of  it,  but  work  together  with  jj|^,^_  153.*^"  ' 
one  stock;  neither  could  the  lord  Mountjoy,  &c.  assigne  his  in-  (Noy,  145.  Cro. 
terest  in  any  part   of  the  wast  to  one  or  more,  for  that  might  Jam.  256,  257. 
worke  a  prejudice  and  a  surcharge  to  the  tenant  of  the  land;  and         ^  '     '' 
therefore  if  such  an  incertaine  inheritance  descendeth  to  two  co- 
parceners, it  cannot  be  divided  betweene  them(l). 

But 

(5)  Ante  32.  a. 

(6)  See  an  instance  of  a  partition  of  an  advowson  between  jointenants  in 
Carth.  505.  ' 

(7)  See  ante  67.  b.  and  Dav.  Rep.  61.  b. 

(8)  Ace.  as  to  common  sans  nonibre,  ante  149.  a.  See  the  note  on  this  sort 
of  common,  ante  122.  a. 

(1)  This  same  case  of  the  earl  of  Huntingdon  and  lord  Mountjoy  is  reported 
in  Godb.  17.  1  And.  307.  and  Mo.  174.  "Lord  Anderson  gives  the  opinion 
of  the  judges  as  it  was  certified  in  writing  to  the  privy  council;  but  this 
certificate  takes  no  notice  of  the  point  of  indivisibility ;  nor  is  it  one  of  the 
questions  stated  by  lord  Anderson  to  have  been  referred  to  the  judges. — In 

Mo. 


165.  a.] 

(6  Co.  1.) 


[^]  2  E.  2. 
Dower,  123. 
13  E.  2. 
Quar.  imp.  170. 
Fleta,  ubi  supra. 
Vide  Mirror, 
ca.  2.  sect.  17. 


[z]  Bracton, 

lib.  2.  76. 

Britton,  cap.  71, 

72. 

Fleta,  lib.  5. 

cap.  9. 


(Ant.  18.  b. 
27.  a.) 

[*]  23  H.  3.  tit. 
Partition,  18. 
contra,  Cruise 
on  Dig.  143, 


[a]  3  H.  3. 
tit.  Prescrip- 
tion, (6). 


Of  Parceners.     L.  3.  C.  1.  Sect.  241. 

But  then  it  may  be  demanded,  what  shall  become  of  these  in- 
heritances? The  answer  is,  that  it  appeareth  in  our  bookes,  that 
regularly  [y]  the  eldest  shall  have  the  reasonable  estovers,  com- 
mon, pischary,  corody  incertaine,  &c.  and  the  rest  shall  have  a 
contribution,  that  is,  an  allowance  of  the  value  in  some  other  of 
the  inheritance,  and  so  of  the  like.  But  what  if  the  common  an- 
cestor left  no  other  inheritance  to  give  any  thing  in  allowance, 
what  contribution  or  recompence  shall  the  younger  coparceners 
have  ?  It  is  answered,  that  if  the  estovors  or  pischary  or  common 
be  incertaine,  then  shall  one  coparcener  have  the  estovers,  pis- 
chary, or  common,  &c.  for  a  time,  and  the  other  for  the  like 
time;  as  the  one  for  one  yeare,  and  the  other  for  another,  or 
more,  or  lesser  time,  whereby  no  prejudice  can  grow  to  the 
owner  of  the  soile.  Or  in  case  of  the  pischary,  the  one  may  have 
one  fish,  and  the  other  the  second,  &c.  or  the  one  may  have  the 
first  draught,  and  the  second  the  second  draught,  &c.  And  if  it 
be  of  a  park,  one  may  have  the  first  beast,  and  the  second  the 
second,  &c.  And  if  of  a  mill,  one  to  have  the  mill  for  a  time, 
and  the  other  the  like  time;  or  the  one  one  toll  dish,  and  the 
other  the  second,  (2)  &c.  And  this  appeareth  to  be  the  ancient 
law;  for  it  is  said [2]  Sunt  alise  ces  lisereditarise  quae  veniunt  in 
partitionem,qude,  cum  dividi  non  2)0ssunt,c07iceduntur,  uni;  ita 
quod  alias  cohseredes  alibi  de  communi  haereditate  habeant  ad 
valorem,  sicut  sunt  vivaria,  piscariee,  parci;  vel  saltem  quod 
partem  haheant  pro  defectu,  sicut  secundum  piscem,  tertium  vel 
quartum;  vel  secundum,  tractum,  tertium  vel  quartum.  Item, 
in  parcis  sccundam,  tertiam  aut  quartam  hestiam. 

But  now  let  us  turne  our  eye  to  inheritances  of  honour  and 
dignity.  And  of  this  there  is  an  ancient  booke  case,  [*]  in  23 
H.  3.  tit.  Partition,  18,  in  these  words :  Note,  if  the  earldome 
of  Chester  descend  to  coparceners,  it  shall  be  divided  betweene 
them,  as  well  as  other  lands,  and  the  eldest  shall  not  have  this 
seigniory  and  earldome  entire  to  herselfe;  quod  nota,  adjudged 
p>er  totam  curiam(^).  By  this  it  appeareth,  that  the  earledome, 
(that  is,  the  possessions (4)  of  the  earledome)  shall  be  divided; 
and  that  where  there  be  more  daughters  than  one,  the  eldest 
shall  not  have  the  dignity  and  power  of  the  earle,  that  is,  to  be 
a  countesse.  What  then  shall  become  of  that  dignity?  The 
answer  is,  [a]  that  in  that  case  the  king,  who  is  the  soveraigne 

of 


Mo.  707,  the  same  case  is  cited  arguendo;  and  there  four  judges  are  represented 
to  have  been  ecjually  divided  in  opinion  as  to  the  first  point  mentioned  by  lord 
Coke.  But  according  to  Anderson  the  diiference  of  opinion  was  only,  whether 
any  remedy  was  furnished  by  law  for  the  interest  reserved  to  lord  Mountjoy  by 
the  proviso.    As  to  this  latter  point,  see  8  Co.  46.    Noy,  145. — [Note  5.] 

(2)  How  dower  is  to  be  assigned  out  of  indivisible  inheritances,  see  ant.  32.  a. 

(3)  See  Dav.  Rep.  61.  b. 

(4)  In  2  Ro.  Abr.  254,  the  case  of  23  H.  3,  relative  to  the  earldom  of  Ches- 
ter, is  mentioned  as  if  the  daughters  might  have  been  coparceners  of  the  <'^(V//(;Vy 
itself,  and  not  merely  of  the  possessions  of  the  earldom.  IIow  the  earldom  of 
Chester  became  annexed  to  the  crown  in  the  reign  of  Ilcn.  3,  on  the  death  of 
John  Scot  the  last  earl,  leaving  three  sisters  his  coheirs,  is  explained  in  1 
Dugd.  Bar.  45.  See  further  on  this  point  of  indivisibility,  Bract.  76.  b.  Brit. 
187.     Flet.  313.  and  I)av.  Hep.  61.  b.— [Note  6.] 

(5)  Fitz.  Abr.  Prescription,  56. 


L.  3.  C.  1.  Sect.  241.        Of  Parceners.  [165.  a. 

of  honour  and  dignity,  may  for  the  incertainty  conferre  the 
dignity  upon  which  of  the  daughters  he  please.  And  this  hath 
been  the  usage  since  the  Conquest,  as  it  is  said  (6). 

But  if  an  earle  that  hath  this  dignity  to  him  and  his  heires 
dieth,  having  issue  one  daughter,  the  dignity  shall  descend  to 
the  daughter  ;  for  there  is  no  incertainty,  but  onely  one  daugh- 
ter, and  the  dignity  shall  descend  unto  her  and  her  posterity, 
as  well  as  any  other  inheritance.  And  this  appeareth  by  many- 
precedents,  and  by  a  late  judgement  given  in  Sampson  Leonard's 
case,  who  married  with  Marcjaret  the  only  sister  and  heire  of 
Gregory  Fines  lord  Dacre  of  the  South,  and  in  the  case  of  Wil- 
liam Lord  Bos  (7). 

But  there  is  a  diiference  betweene  a  dignity  or  name  of  nobi- 
lity, and  an  office  of  honor.  For  if  a  man  hold  a  mannor  of  the 
king  to  be  high  constable  of  England,  and  dye  having  issue  two 
daughters,  the  eldest  daughter  taketh  husband,  he  shall  execute 
the  office  (8)  solely,  and  before  marriage  it  shall  be  exercised  by 


(6)  This  doctrine  about  the  abeyance  of  titles  of  honour,  and  their  being 
revived  by  the  royal  nomination,  though  our  books  furnish  little  matter  on  the 
subject,  is  undoubtedly  law;  and  there  are  many  instances  of  an  exertion  of 
this  prerogative.  One  of  the  most  remarkable  took  place  during  the  present 
reign  in  the  person  of  the  late  Mr.  Norborn  Berkley,  who  in  1764  was  called 
to  the  house  of  peers  in  right  of  the  old  barony  of  Botetourt,  a^t^er  an  abeyance 
of  several  centuries,  and  was  allowed  to  sit  according  to  the  antiquity  of  that 
barony.  See  Cas.  in  Dom.  Proc.  for  1764.  Another  instance  in  thepres^ent 
reign  is  the  case  of  Sir  Francis  Dash  wood,  late  lord  Despenser;  for  in  1763 
he  was  called  to  the  ancient  barony  of  that  name  in  right  of  ^his  deceased 
mother,  who  was  eldest  sister  and  one  of  the  coheirs  of  an  earl  of  Westmoreland, 
on  whose  death  that  barony  had  become  in  abeyance  ;  and  being  so  summoned 
he  took  his  scat  as  premier  baron  in  place  of  lord  Abergavenny,  who  before 
possessed  that  distinction. — [Note  7.] 

(7)  The  first  of  these  cases  was  in  1596,  and  the  second  in  1616.  Both  are 
now  in  print,  having  been  published  from  manuscripts  of  the  time  by  Mr.  Collins, 
in  his  claims  concerning  baronies,  &c.  See  p.  24,  &  162.  It  must  not  be 
inferred  from  the  purpose  for  which  lord  Coke  cites  them,  that  the  descent  ot 
a  barony  to  a  female,  where  in  the  creation  it  was  not  confined  to  heirs  male, 
was  controvertible.  The  points  debated  in  those  cases  were  of  another  kind. 
In  Sampson  Leonard's  the  question  was,  whether  the  husband  can  be  tenant 
by  the  courtesy  of  a  title  of  honour.  See  my  observation  as  to  that  point, 
ante  29.  b.  note  1.  That  of  Lord  Bos  depended  on  the  effect  of  superadding 
an  earldom  in  tail  mah  to  one  having  a  barony  before  descendible  to  heirs 
general,  it  being  contended,  that  the  former  should  attract  the  latter  in  point 
of  descent  so  as  to  be  inseparable  whilst  the  earldom  continues. — [Note  8.] 

(8)  In  a  late  contest  about  the  office  of  great  chamherlain,  which  arose  in 
consequence  of  the  late  Duke  of  Ancaster's  leaving  two  sisters  his  co-heiresses, 
one  of  whom  was  married  to  Mr.  Burrell,  the  then  attorney-general  made  a 
report  in  conformity  to  the  doctrine  here  stated  by  lord  Coke  as  to  the  office 
of  high  constable ;  and  this  report,  of  which  I  have  a  copy,  contains  a  very 
learned  investigation  of  the  subject.  But  afterwards,  when  the  case  came 
before  the  lords,  the  judges  gave  it  as  their  opinion,  that  the  office  belongs  to 
both  sisters;  that  the  husband  of  the  eldest  is  not  of  right  entitled  to  execute  it  ; 
and  that  both  sisters  marj  execute  it  by  deputy  to  be  appointed  by  them,  such 
deputy  not  being  of  a  degree  inferior  to  a  hiight,  and  to  be  approved  o/  by  the 
king.  See  Journ.  Dom.  Proc.  25  May  1781,  the  printed  cases  of  the  several 
claimants,  and  the  Pari.  Reg.  for  1780-1,  v.  4.  258  to  297.— [Note  9.] 


165.  a.  165.  b.J     Of  Parceners.      L.  3.C.  1.  Sect.  241. 

some  sufficient  deputy ;  and  all  this  was  resolved  by  all  the 
[h]  llEliz.Dier,  judges  of  England,  in  the  case  of  [&]  the  duke  oi  Buckingham . 
285,  the  duke  of  But  the  dignity  of  the  crowne  of  England  is  without  all 
Buckingham's  question  descendible  to  the  eldest  daughter  alone,  and  to  her 
case  (9).  posterity  (10),  and   so  hath  it  beene   declared  by  act  of  par- 

r*l  25  H.  8.        liament.  *  [*]  For,  regnum  non  est  divisibile.     And  so  was  the 
cap.  22.  descent  of  Troy  : 

,,.    .,                                  Prceterea  sceptriim,  Ilione  quod  qesserat  olim 
1  ^neid.  Maxima  natarnm  rriami. 

r6l  Bract,  lib.  2.       [&]  If  a  castle  that  is  used  for  the  necessary  defence  of  the 

fol.  76.  Fleta,      realme,  descend  to  two  or  more  coparceners,  this  castle  might 

lib.  5.  cap.  9.       -jjQ  divided  by  chambers  and  roomes,  as  other  houses  be.     But 

yet,  for  that  it  is  pro  hono  publico  et pro  defensione  regni,  it  shall 

not  be  divided;  for  as  one  saith,  propto-Jiis  gladii  dividi  non 

[»]  Britton,  186,  potest  ;  and  another  saith,  [*]^>m)-  le  droit  del  esphe  que  ne  soeffre 

1 87.  '  division  en  a  venture  que  la  force  del  realme  ne  defaillepax  taunt. 

But  castles  of  habitation  for  private  use,  that  are  not  for  the 

necessary  defence  of  the  realme,  ought  to  be  parted  betweene 

Vide  Sect.  36.     coparceners  as  well  as  other  houses  ;  and  wives  may  thereof  be 

endowed,  as  hath  been  said  in  the  Chapter  of  Dower  (11). 

If  there  be  two  coparceners  of  certaine  lands  with 

warranty,  and  they  make  partition  B^"of  the  land,  the  rieS.I 

warranty  shall  remayne ;  because  they  are  compellable   L    t)-     J 

[c]  29  E.  3.         to  make  partition,     [c]  But  otherwise  it  was  of  joyn- 

Garrantie,  70.      tenants  at  the  common  law,  as  shall  be  said  hereafter  in  his 

(6  Co.  12- b.)       proper  place. — [cf]  Thomas  de  Eberston,  seised  of  the  manner  of 

inl    '"■  "  Eberston  within  the  forrest  of  Pickering,  had  kept  time  out  of 

8  E.  3.  Rot.  34.    mind  a  woodward  for  keeping   of  the  woods  parcell  of  that 

(Aat,  115.  a.)       manner,  and  had  the  barke  of  all  the  trees  felled  in   the  said 

woods  by  any  of  the  forresters  of  that  forest  as  belonging  to  his 

manner  (which  he  could  not  have  without  a  prescription)  (1). 

Thomas  of  Eberston  infeoffed  two  of  the  said  manner;  betweene 

whom  partition  was  made,  so  as  one  of  them  had  the  one  halfe 

in  severalty  and  the  other  the  other  halfe  (2).     Eobert  Wyerne 

afterwards  had  the  one  halfe,  and  Thomas  Thurnise  the  other  ; 

and  they  in  the  eyre  of  Pickering  claimed  to  keepe  a  woodward 

within  the  said  woods,  and  the  barke  aforesaid ;  and  the  truth 

hereof  and  the  usage   being  specially  found  by  the  forrestors, 

verderors  and  regardors,  Willoughby,  Hungerford  and  Eanburie, 

justices 


(9)  S.  C.  Keilw.  170.  b.     4  Inst.  127. 

(10)  See  ant.  15.  b. 

(11)  Ant.  31.  b. 

(1)  The  claim  of  a  like  privilege  as  appurtenant  to  a  manner  is  mentioned  in 
Crompt.  Jurisd.  Co.  192.  b.  See  further  concerning  the  office  of  woodtcard  in 
Manwood's  For.  Laws  by  Nelson,  339. — [Note  10.] 

(2)  It  is  observable  in  this  partition,  that  no  provision  is  made  in  respect  to 
the  office  of  woodward,  and  privilege  of  having  the  bark  of  felled  trees,  which 
were  appurtenant  to  the  manor.  In  a  former  place  lord  Coke  states  the  par- 
tition of  a  manor  to  which  an  advowson  was  appendant,  and  explains  what  the 
effect  is  on  the  advowson,  where  from  want  of  any  particular  agreement 
between  the  parties  it  is  left  to  the  law  to  regulate  how  the  advowson  shall  be 
disposed  of.     Ant.  122.  a.— [Note  11.] 


L.  3.  C.  1.  Sect.  242,  243.  Of  Parceners.     [165.  b.  166.  a. 

justices  itinerants  within  that  forrest,  gave  judgment  as  follow- 
eth  :  Ideo  consideratum,  est  quod  jjrsedict'  Rohertus  et  Thomas 
haheant  woodwarduni  et  corticem  in  bosco  prsedicto  de  quercuhus 
preedictis  sibi  et  haeredibus  suis  in  perpetuum.  Salvo  semper 
Jure,  &c. 


Sect.  242. 

J^SO^  if  a  man  seised  of  tenements  in  fee  simple  or  in  fee-tayle  dieth 
without  issue  of  his  hodie  begotten,  and  the  tenements  descend  to  his 
sisters,  they  are  parceners,  as  is  aforesaid.  And  in  the  same  manner, 
where  he  hath  no  sisters,  but  the  lands  descend  to  his  aunts,  they  are  par- 
ceners [S],  ^e.  But  if  a  man  hath  but  one  daughter,  she  shall  not  be 
called  parcener,  but  she  is  called  daughter  and  heire,  S^c. 

"/^^  in  fee  tayUy  This  must.be  intended  of  an  estate  taile 
made  to  the  father  and  to  the  heires  of  his  body  5  for  other- 
wise if  the  state  tayle  were  made  to  a  man  and  to  the  heires  of 
his  body,  his  sisters  cannot  inherit.  And  not  only  daughters 
shall  be  coparceners,  but  sisters,  aunts,  great  aunts,  &c. 

"  Daughter  and  heire,  &c."     Here  by  (&c.)  is  implyed  sister 
and  heire,  aunt  and  heire,  great  aunt  and  heire,  and  so  upward. 


Sect.  243. 

J  iVD  it  is  to  be  understood,  that  partition  may  be  made  in  divers 
manners-  One  is,  when  they  agree  to  make  partition,  and  do  make 
partition  of  the  tenements  ;  as  if  there  be  two  parceners  to  divide  between 
them  the  tenements  in  two  parts,  each  part  by  it  selfe  in  severalty  and  vf 
equall  value  ;  and  if  there  be  three  parceners,  to  divide  the  tenements  in 
three  parts  by  it  selfe  in  severalty,  ^c. 

BY  this  Section,  and  the  (<&c.)  in  the  end  of  it,  it  is  to  be  under- 
stood, that  there  are  two  kind  of  partitions  betweene  copar- 
ceners ;  the  one  in  deed  or  expresse,  and  the  other  in  law  or  im-  (^^*"  ^^-  ^-^ 
plicite.     Of  partitions  in  deed  or  expresse,  some  be  voluntary, 
whereof  Littleton  enumerates  four  manners;  and  one  compul- 
sory, that  is,  by  writ  of  partition  (4). 
fl66.n      B@"  The  first  partition  in  deed  betweene  coparceners,  (F.  N.  B.  167.) 
a.     J   is  that  which  itWfeto/i  here  speaketh  of,  viz.   When  they 
agree  and  make  partition  of  tenements,  &c.  each  part 
by  itself e  in  severalty  and  of  equall  value,  &c.      If  coparceners 
make  partition,  at  full  age  and  unmarried,  and  of  sane  memorie, 

of 

(3)  they  areparceners  not  in  L.  and  M.  nor  Roh. 

(4)  The  reference  in  the  margin  to  fol.  46.  a.  is  to  an  instance  of  the  differ- 
ence in  point  of  effect  on  the  lessee  for  years  of  a  coparcener,  between  partition 
by  writ  and  partition  without. — [Note  12]. 


166.  a.  166.  b.]    Of  Parceners.  L.  3,  C.  1.  Sect.  244,  245. 

of  lands  in  fee  simple,  it  is  good  and  firme  for  ever,  albeit  the 
values  be  unequall ;  but  if  it  be  of  lands  entailed,  or  if  any  of 
the  parceners  be  of  non  sane  memorie,  it  shall  binde  the  parties 
themselves,  but  not  their  issues  unlesse  it  be  equall;  or  if  any 
be  covert,  it  shall  bind  the  husband,  but  not  the  wife  or  her  heires ; 
or  if  any  be  within  age,  it  shall  not  bind  the  infant;  as  shall  be 
said  more  fully  hereafter  (1).  The  second  partition  followeth 
in  the  next  Section.  And  here  the  (i£-c.)  implyeth  further,  that 
Vide  Sect.  241.  if  there  be  four  parceners,  then  four  parts,  if  five,  five  parts, 
and  so  forth.  It  further  implyeth,  that  all  this  must  be  in  seve- 
ralty; whereof,  and  with  what  limitations,  this  is  to  be  under- 
stood, it  hath  been  declared  before. 


Sect.  244. 

A  NOTHER  partition  there  is,  viz.  to  choose,  by  agreement  hetweene 
themselves,  certaine  of  their  friends,  to  make  partition  of  the  lands  or 
tenements  in  forme  aforesaid.  And  in  these  cases,  after  such  partition^ 
the  eldest  daughter  shall  choose  first  one  of  the  parts  so  divided,  which 
she  ivill  have  for  her  part,  and  then  the  second  daughter  next  after  her 
another  part,  and  then  the  third  sister  another  part,  then  the  fourth  another 
part,  ^e-  if  so  he  that  there  he  more  sisters,  ^c.  unlesse  it  he  otherwise 
agreed  hetween  them.  For  it  may  he  agreed  between  them,  that  one  shall 
have  such  tenements,  and  another  such  tenements,  ^c.  without  any  pri- 
mer election. 

31  Ass.  26.  <'  rp HEN  the  fourth  another  part,  &c."     Here  the  {&c.)  im- 

plyeth  the  5  sister,  and  after  her  the  6,  and  so  forth. 

"  For  it  may  he  agreed  hetweene  them,  that  one  shall  have  such 
tenements,  and  another  such  tenements,  &c."  Here  by  this  (drc) 
is  implyed  divers  rules  of  law  proving  the  conclusion  of  Lntth- 
(1  Sid.  193.269.  t.on  in  this  Sect.  viz.  Modus  et  conventio  vincunt  legem,.      Pacta 
Cro.  Eliz.  664.)     aliquid  licitumest,  quod  sinepacto  non  admittttnr.    QuiUhet potest 
(1  Sid.  339.)        renunciare  juri  pro  se  introduct',  but  with  this  limitation,  that 
these  rules  extend  not  to  any  thing  that  is  against  the  common- 
wealth or  common  right.     For  conventio  privaiorum  non  potest 
publico  juri  derogare. 


«^  Sect.  245.  \^%^'] 

AND  the  part  which  the  eldest  sister  hath,  is  called  in  Latine  enitia 

pars.     But  if  the  parceners  agree,  that  the  eldest  sister  shall  make 

partition  of  the  tenements  in  manner  aforesaid,  and  if  she  do  this,  then 

it  is  said,  that  the  eldest  sister  shall  choose  last  for  her  part,  and  after 

every  one  of  her  sisters,  S-c.  (1)*. 

''ENITIA 


(1)  See  post.  Sect.  255  to  258,  inclusive.     See  also  173.  b. 
(1)  *The  &c.  not  in  L.  and  M.  nor  Roh. 


L.  3.  C.  1.  Sect.  245.    Of  Parceners.  [166.  b. 

"  ZpNlTIA  pars."     It  is  called  in  old  bookes*  seisnetia,  whicli  «  Bract,  li.  2. 77. 

^  is  derived  of  the  French  word  eime  for  eldest,  as  much  as  gl.j^^^^^-f-'y^j?' 
to  say  the  part  of  the  eldest;  for  Bracton  saith,  quod  eisnetia  ' 

semper  est  prceferenda  propter  'privilegium  cetatis;  sed  esfo,  quod 
filia  primogenita  relicto  nepote  vel  nepte  in  vita  patris  vel  matris, 
decesscrit,  prceferenda  erit  soror  anteriata  tali  nepoti  vel  nepti 
quantum  ad  eisnetiam,  qui  mortem  parentum  expectavit.  And 
herewith  agreeth  Fleta,  also,  quod  nota :  whereby  it  appeareth 
that  eiu'tiapars  is  personall  to  the  eldest,  and  that  this  prerogative 
or  priviledge  descendeth  not  to  her  issue,  but  the  next  eldest 

sister  shall  have  it.     [/]  And  here  is  a  diversity  to  be  observed  [/]  45  E.  3. 

betweene  this  case  of  a  partition  in  deed  by  the  act  of  the  parties,  ^'J|^^^^'f^-  ^  ^g"''- 

for  there  the  priviledge  of  election  of  the  eldest  daughter  shall  j'g"^;  2™u,'ici. ' 

not  descend  to  her  issue;  and  where  the  law  doth  give  the  eldest  176.  5  H.  5.  io. 

any  priviledge  without  her  act,  there   that  priviledge  shall  de-  38^H.  6.  9.^^^ 

sceud.     As  if  there  be  divers  coparceners  of  an  advowsonf,  and  ^^^^  ^-^-^^^^  y/^ 

they  cannot  agree  to  present,  the  law  doth  give  the  first  present-  Bract.  2.38.  249. 

ment  to  the  eldest;  and  this  priviledge  shall  descend  to  her  issue;  fs  H.  7.  8 

nay  her  assignee  shall  have  it  (2) ;  and  so  shall  her  husband,  that  "^^  jj-  ^-  ^^■ 

is  tenant  by  the  curtesie,  have  it  also (3).  20  E.  3.  Quar. 

imp.  63. 

"  Then  it  is  said  that  the  eldest  sister  shall  choose  last,  &c."  34  E.  3.  ib^^l^S- 

By  this  and  the  &c.  in  the  end  of  this  Section  is  iraplyed,  the  present,  ii.'^'^ 

rule  of  law  is,  cujus  est  divisio,  alter  iris  est  electio.     And  the  17  E.  3.  20,  21. 

reason  of  the  law  is  for  avoyding  of  partiality,  21  E.  |  21. 

(^Tpsce  etenim  leges  cvpiunt  utjure  regantur')  (Post.  186.  b.) 

which 


(2)  Ace.  P.  18  E.  Quare  Impedit,  176.  Post.  186.  b.  3  Co.  22.  b.  2 
Inst  365.  2  Ro.  Abr.  346.  Mallory's  Quare  Impedit,  145.  Three  judges 
also  held  accordingly.  East,  23  Eliz.  in  Harris  &  Hales  v.  Nichols,  Cro.  Eliz. 
18.  But  Anderson  chiefe  justice  doubted  whether  a  grantee  should  have  the 
privilege.  In  Keilwey  there  is  a  case  of  18  H.  7,  in  which  Frowike  chief  jus- 
tice is  made  to  give  it  to  the  grantee  of  the  eldest  sister,  only  where  it  has 
b^en  once  exercised  by  herself.  But  he  afterwards  doubted  his  own  distinction, 
and  seemed  to  incline  to  the  grantee's  right  generally ;  in  consequence  of  which 
the  report  concludes  thus:  Stude  bene  et  qua;re.  Keilw.  49.  Upon  the  whole 
therefore  it  seems,  that  the  point  is  not  quite  settled;  and  to  determine  it  pro- 
perly would  require  a  very  careful  examination  of  the  numerous  cases  cited  by 
lord  Coke  here  and  in  the  Second  Institute.  See  7  Ann.  c.  18.  I  was  led  into 
this  note  by  a  reference  to  the  case  from  Cro.  Eliz.  in  a  Coke  upon  Littleton 
of  the  late  Mr.  Beversham  Filmer,  and  by  an  opinion  of  the  same  very  learned 
gentleman,  in  which  he  represents  the  point  to  be  doubtful,  and  therefore  dis- 
suaded accepting  the  title  to  the  next  presentation  of  an  advowson  belonging  to 
three  sons  as  heirs  in  gavelkind,  unless  they  would  all  join  in  the  grant.  The 
eminence  of  Mr.  Filmer  as  a  barrister,  more  especially  in  the  conveyancing 
line,  will,  I  presume,  fully  justify  me  for  thus  introducing  his  name.  The 
doubts  of  a  lawyer  so  profound  and  correct,  as  he  was  universally  allowed  to 
be,  will  ever  claim  high  respect;  and  it  is  with  peculiar  pleasure  that  I  take 
this  opportunity  of  expressing  the  veneration  with  which  I  hold  him  in  my  re- 
membrance.    See  H.  Black.  412.— [Note  13.] 

(3)  Agreed  by  lord  Anderson  in  the  case  from  Cro.  Eliz.  cited  in  the  pre- 
cedina;  note. 


166.  b.  167.  a.]        Of  Parceners.  L.  3.  C.  1.  Sect.  246-47. 

which  might  apparently  follow  if  the  eldest  might  both  divide 
and  choose  (4).     Now  followeth  the  tMrd  partition  in  deed. 


Sect.  246. 

ANOTHER  'partition  or  allotment  is,  as  if  there  be  four  parceners^ 
and  after  partition  of  the  lands  he  made,  every  part  of  the  land  hy 
itself  is  written  in  a  little  scrowle  and  is  covered  all  in  waxe  in  matiner 
of  a  little  ball,  so  as  none  may  see  the  scrowle,  and  then  the  4  balls  of 
waxe  are  put  in  a  hat  to  be  kept  in  the  hands  of  an  indiffer- 
ent man,  and  then  the  eldest  daughter  shall  first  ]S^^  put  her  ri67."| 
hand  into  the  hat,  and  take  a  ball  of  waxe  with  the  scrowle  L  a.  J 
within  the  same  ball  for  her  part,  and  then  the  second  sister 
shall  put  her  hand  into  the  hat  and  take  another,  the  3  sister  the  3  ball, 
and  the  4  sister  the  4  ball,  ^c.  and  in  this  case  every  one  of  them  ought 
to  stand  to  their  chance  and  allotment. 

"  A  LLOTMENTy     Of  this  partition  by  lots  ancient  authors 
»Flet.  lib.  5.  *write,  that  in  that  case  coparceners  fortunam  facnint  Ju- 

ca.  9.  Bracton,  dicem.  And  Littleton  here  termeth  it  chance ;  for  in  the  end  of 
B^itton^^ca  72  ^^^^  Section  he  saith,  that  in  this  case  every  of  them  ought  to 
on,  cap.  .  ^^^^  herselfe  to  her  chance ;  and  of  this  kind  of  division  you 
Vide  Numbers,  shall  read  in  holy  scripture,  where  it  is  sayd,  dedi  vobis  posses- 
ca.  xxvi.  ver.  54,  sionem  quam  dividet is  forte. 

^^'  *  r'of  a  di         ^^®  ^^-  ^^  *^^  ^^^  °^  *^^^  Section  implyeth,  that  if  there  be 
rtsioa  by  lots.^    more  coparceners  there  must  be  more  balls  according   to  the 

number  of  the  parceners. 


Sect.  247. 

ALSO,  there  is  another  partition.  As  if  there  be  four  parceners,  and 
they  will  not  agree  to  a  partition  to  be  made  between  them,  then  the 
one  may  have  a  writ  of  partitione  facienda  against  the  other  three,  or 
tivo  of  them  may  have  a  writ  of  partitione  facienda  against  the  other 
two,  or  three  of  them  may  have  a  writ  0/ partitione  facienda  againstthe 
fourth,  at  their  election. 

HERE  followeth  the  fourth  partition  in  deed.  Littleton  having 
spoken  of  voluntary  partitions,  or  partitions  by  consent: 
now  he  speakes  of  a  partition  by  the  compulsory  means  of  law 
where  no  partition  can  be  had  by  consent.  Now  of  what  inherit- 
ance partition  may  be  made  by  the  writ  oi  partitione  facienda 
may  partly  appeare  by  that  which  hath  been  sayd.  Moreover 
it  is  to  be  observed  that  the  words  of  the  writ  de  partitione 
♦  3  E.  3.  47, 48.  facienda  be  *q%idd  cum  eadem  A.  et  B.  insimul  et  pro  indiviso 
tciteant  tres  acras  terree  cumpertinen',&c.  And  note  that  this  word 

(^tenet^ 


(4)  See  Ilob.  107,  where  the  doctrine  is  cited  with  apprehension. 


L.  3.  C.  1.  Sect.  247.     Of  Parceners.      [167.  a.  167.  b. 

(tenet)  (1)  in  a  writ  doth  always   imply  a  tenant  of  a  freehold. 
And  therefore  [^]  if  one  coparcener  maketh  a  lease   for  yeares.  [.9]  21  E.  3.  57. 
yet  a  writ  of  partition  doth  lie  (2).     But  if  one  or  both  make  a  ^^  ^  g-^^-  ^• 
lease  for  life,  a  writ  of  partition  doth  not  lie  between  them  :  n  h.  4.  3. 
because  non  insimul  et  pro  mdiviso  tenent,  they  do  not  hold  the  4  H.  7. 10.  b. 
freehold  together,  and  the  writ  of  partition  must  be  against  the  ^^^^^-  ■^^^-  ^-^ 
tenant  of  the  freehold,     [/t]  If  one  coparcener  disseise  another,  M  4  H.  7.  9, 
during  this  disseisin  a  writ  of  partition  doth  not  lie  between  them ;  ^p  ^f  ^g^'  v^ 
for  the  non  tenent  insimul  et  pro  indiviso.  187^  a) 

But  there  be  other  partitions  in  deed  than  here  have  been 
mentioned,     [t]  For  a  partition  made  between  two  coparceners,  [*]  Temps  E.  1. 
that  the  one  shall  have  and  occupy  the  land  from  Easter  untill  Partition,  21. 
the  first  of  August  only  in  severalty  by  himselfe,  and  that  the  (7  Co.  5')^^' 
other  shall  have  and  occupie  the  land  from  the  first  of  August 
until  the  feast  of  Easter  yearly  to  them  and  their  heires,  this  is 
a  good  partition  (3).     Also  if  two  coparceners  have 

[167.1  two  manners  by  descent,  fi@*  and  they  make  partition, 
b.  J  that  the  one  shall  have  the  one  manor  for  one  yeare, 
and  the  other  the  other  manor  for  this  yeare,  and  so 
altei'nis  vicibus  to  them  and  their  heires,  this  is  a  good  partition. 
The  same  law  is,  if  the  partition  be  made  in  forme  aforesaid,  for 
two  or  more  years,  and  each  coparcener  have  an  estate  of  inheri- 
tance, and  no  chattell,  albeit  either  of  them  alternis  vicibus  have 
the  occupation  but  for  a  certaine  terme  of  yeares. 

Of  partitions  in  law,  some  be  by  act  in  law  without  judgement, 
and  some  be  by  judgement,  and  not  in  a  writ  de  partitione 
faciendd.     And  of  these  in  order. 

\Jc]  If  there  be  lord,  three  coparceners  mesnes,  and  tenant,  [kl  36  H.  6.  7. 
and  one  coparcener  purchase  the  tenancy,  this  is  not  onely  a  par-  l^^^^-  ^^2.  a.) 
tition  of  the  mesnalty,  being  extinct  for  a  third  part,  but  a  divi- 
sion of  the  seigniory  paramount,  for  now  he  must  make  severall 
avowries  (1). 

[J]  If  one  coparcener  make  a  feoffment  in  fee  of  her  part,  this  [t]  37  H.  6.  8. 
is  a  severance  of  the  coparceuarie,  and  several  writs  of  prcecipe  ^^  ^-  ^-  ^• 
shall  lie  against  the  other  coparcener  and  the  feoffee  (2). 

[m]  If  two  coparceners  be,  and  each  of  them  taketh  husband  [m]  17  E.  3. 
and  have  issue,  the  wives  die,  the  coparcenary  is  divided,  and  ^^>  in- 
here is  a  partition  in  law. 

[?i]  If  two  coparceners  be,  and  one  disseise  the  other,  and  the  [«]  12  E.  3. 
disseisee  bringeth  an  assise,  and  recover,  it  hath  been  said,  that  £^*^^°";^^^• 

'  '7  Ass.  10. 

7  E.  3.  49.     10  Ass.  17.    12  Ass.  5.  17.    10  E.  3.  40.  43.     28  Ass.  35.    23  Ass.  18. 
20  E.  3.    Ass.  62.    3  E.  3.  48.  b.     19  H.  6.  45.     7  H.  6.  4.    3  E.  4.  10. 

she 

(1)  See  the  various  applications  of  the  verb  tenet  explained  ant.  fol.  1.  a.  &  b. 

(2)  So  too  execution  of  dower  is  not  prevented  by  a  lease  for  years  subsisting 
at  the  husband's  death.  Ant.  32.  a.  How  lessee  for  years  is  afiected  by  such 
a  partition,  is  before  explained  by  lord  Coke  in  fol.  46.  a. — [Note  14.] 

(3)  See  the  case  of  a  moveable  fee  simple,  stated  ant.  fol.  4.  a. 

(1)  But  according  to  Bro.  Nouv.  Cas.  108,  the  lord  should  have  notice  of 
the  partition. — [Note  15.] 

(2)  Ace.  ant.  67.  b.  post.  175.  a.  195.  a.  But  this  sort  of  partition  is  not  a 
partition  in  the  sense  in  which  Littleton  writes  of  partitions,  nor  in  the  common 
sense  of  the  word.  He  means  a  division  of  the  land  itself;  whereas  what  lord 
Coke  here  calls  a  partition  is  a  mere  severance  of  the  unity  of  the  title,  which 
operates  as  Littleton  afterwards  states,  by  making  a  tenancy  in  common.  See 
Sect.  309.— [Note  16.] 

Vol.  II.— 2 


167.  b.]  Of  Parceners.     L.  3.  C.  1.  Sect.  248. 

she  shall  have  judgement  to  hold  her  moity  in  severalty.     And 
this    seemeth  (they  say)  verie  ancient,    and    thereupon  vouch 

*  Bract,  lib.  4.  Bracton,  *  si  res/nerif  communis,  locum  hahcre  poterit  communi 
foi  ?E^3  48  dividendo  judicium.  And  [o]  so  (say  they)  if  the  one  c-oparcener 
21  R.  2.  tit.  *  recover  against  another  in  a  nvijer  ohiif  or  a  rationahili parte,  the 
Nuper  ob.  22.  judgement  shall  be,  that  the  demandant  shall  recover  and  hold  in 

*  ^- ''•  '^^  severalty.  But  Britton  is  to  the  contrary  ;  for  he  saith,  *  et  si 
ob.  18.^'  "^^^^  ascun  desparceners  soit  ewjet  ou  disturbe  de  la  seisin  per  ses  auters 
F.  N.  B.  9.  B.  parceners,  un,  ou  plusors,  al  disseisee  viendra  assise  per  severall 

*  Britton,  pleint  sur  les  parceners  et  recovera,  mes  nemy  a  tener  et  scveraltie, 
[»i  Vco.^i2,  &  "^6s  ^"^  common  solonque  ceo  que  avant  le  fist,  &c.  [p]  And  this 
13.  Morrice's  seemeth  reasonable  ;  for  he  must  have  this  judgement  according 
case  accord.  ^q  ]ijg  plaint,  and  that  was  of  a  moitie,  and  not  of  any  thing  in 
(Post.  187.  a.)  geveraltie,  and  the  sherife  cannot  have  any  warrant  to  make  any 

partition  in  severalty  or  by  metes  and  bounds. 


Sect.  248. 

A  ND  when  judgement  shall  he  given  upon  this  writ,  the  judgment  shall 
be  thus  ;  that  partition  shall  be  made  between  the  parties,  and  that 
the  sherife  in  his  j^roper  person  shall  go  to  the  lands  and  tenements,  ^c. 
and  that  he  by  the  oath  of  12  lawful  men  of  his  bailiwick,  ^c.  shall  make 
partition  between  the  piarties,  and  that  one  part  of  the  lands  and  tene- 
ments shall  be  assigned  to  the  plaintif  or  to  one  of  the  plaintifs,  and 
another  part  to  another  parcener,  <^c.  not  making  mention  in  the  judge- 
ment of  the  eldest  sister  more  than  of  the  youngest. 

Bract,  fo.  66,&c.  "NJOTE,   the  first  judgement  in  a  writ  of  partition,  whereof 

Brit.  71,  Ac.         J[\   JJttleton  here  speaketh,  is  quod  partitiofiat  inter  partes  prce- 

rietaHib.  5.        dictas  de  fenementis prcedictis,  cum pcrtinentiis,  after  which  judge- 

ca.  9.'  ment.     By  this  &c.  viz.   tenements,  &c.  is  implyed  that  a  writ 

shall  be  awarded  to  the  sherife,  quod  assumptis  tecum  12  ULcrs 

et  legalihus  hominihus  de  vicineto  tuo,  per  quos  rei  Veritas  meliiis 

sciri  pater  it,  in  propria  persona  tuaaccedas  adtenementapra-dicta 

cum  pertinentihus,  et  ibidem  per  eorum  sacramentum,  inprasentid 

partium  (3)  prctdictarum  p)er  te  pra^muniendarum  si  interesse 

voluerint, 


(3)  These  words,  enjoining  the  partition  to  be  made  in  the  presence  of  the 
parties,  show  that  the  proceeding  before  the  sheriff  is  quite  open.  So  too,  as  it 
seems  should  be  the  execution  of  a  commission  of  partition  issued  by  chancery 
as  a  court  of  equity,  such  commission  being  in  nature  of  a  writ  at  common 
law  for  the  like  purpose.  But  I  understand  that  there  have  been  instances  of 
treating  the  commission  of  partition  as  a  close  proceeding,  and  that  on  that 
idea  it  has  been  sometimes  the  practice  to  annex  an  oath  of  secrecy  to  the 
commission.  This  practice,  I  presume,  has  grown  from  not  attending  to  the 
difference  between  commissions  to  divide  lands  and  commissions  to  examine 
witnesses  merely.  In  the  latter  sort  of  commissions  an  oath  to  keep  the  depo- 
sitions secret  is  expressly  required  by  an  order  of  chancery  of  the  9th  of  Feb- 
ruary, 1721 ;  and  exclusively  of  the  order  the  proceeding  implies  secrecy,  the 
depositions  being  ever  kept  close  under  seal  till  leave  is  obtained  to  divulge 
them  by  the  passing  of  publication.  But  neither  the  language  nor  spirit  of 
this  order  is  applicable  to  commissions  of  partition,  which  like  the  writ  of  par- 
tition ought  to  be  openly  executed. — [Note  17.] 


L.  3.  C.  1.  Sect.  248.     Of  Parceners.         [167.  b.  168.  a. 

voluerint,  ji^sedicta  tenement  cum  pertinentihxis  per  sacramentum 
honorum  et  legalium  hominum  pj-aedictoi-um,  hahito  respectu  ad 
vcrum  valorem,  earundem,  in  duas  partes  aequales  partiri  et  dividi^ 
et  imam,  partem  partium  illarum,  &c. 

This  last  &c.  in  this  Section  is  evident.  Ockam  ca.  quid 

sit  liber  judi- 

[168.~1     "  Judgement,"  S^^  Judicium  est  quasijurts  dictum,  so  4JfE"3^45 
a.     J  called,  because  so  long  as  it  stands  in  force  pro  i)ert7a«e  9  Ass.  2. 
accipitiir  (1)  and  cannot  be  contradicted.     And  there-  8  Ass.  35. 
upon  antiquitie  called  that  excellent  booke  in  the  exchequer,  ^  f:  ^-  ^' 
Domesday,  Diesjudicii.    Sicut  enim  districti  et  terrihilis  examinis  j-.  N.  B.  16. 
ilia  novissima  sententia  nulla  terglversationis  arte  valet  eludi,  &c. 
sic  sententia  ejusdem  lihri  inficiari  nan  potest,  vel  impunl  decli- 
nari;  ab  hoc  nos  eundem  librum  judiciarium  nominamus,  &c. 
qubd  ah  eo  sicut  a prsedicto judicio  nonlicet  idlaratione  discedere. 
By  Littleton  it  appeareth,  that  the  formes  of  judgements,  pleas, 
and  other  legall  proceedings,  do  conduce  much  to  the  right  un- 
derstanding of  the  law  and  of  the  reason  thereof;  as  here  Little- 
ton rightly  coUecteth  upon  the  forme  of  the  judgement,  that  the 
sherife  shall  deliver  to  them  such  parts  as  he  thinks  good,  and 
that  the  eldest  coparcener  shall  have  no  election  when  partition 
is  made  by  the  sherife.     And  it  is  to  be  observed,  that  there  be 
two  judgments  in  a  writ  of  partition.     Of  the  former  Littleton 
speaketh  in  this  place.     And  when  partition  is  made  by  the 
oath  of   twelve  men,  and  assignement   and  allotment  thereof, 
and  so  returned  by  the  sherife,  then  the  latter  judgment  is,  ideo 
consideratum  est,  quod  j)artitio  prsedicta  firma  et  stahilis  in  per- 
petunm  teneatur,  and  this  is  the  principall  judgement.     [5]  And  [7]  11  Co.  40. 
of  the  other,  before  this  be  given,  no  writ  of  error  doth  lie  (2).      J^ill.  39  Eliz. 

'  °         '  ^    '         Rot.  327,  in 

Banke  le  Roy, 
•       "  Sherife."  Shireve  is  a  word  compounded  of  two  Saxon  words,  inter  An. 
viz.  shire,  and  reve.     Shire,  satrapia,  or  comitatus,  commeth  of  Countes  de  War. 
the  Saxon  verbe  shiram,  i.  e.  partiri,  for  that  the  whole  realme  Berkley.^'^^"'^ 
is  parted  and  divided  into  shires;  and  reve  is prae/ectus,  or pjtse-  (Fortesc  52. 
positus;  so  as  shireve  is  the  reve  of  the  shire,  prsefectus  satrapise.  Ant.  50.  a. 
provinciae,  ox  coynitatus.     And  he  is  called  pras/cf^KS,  because  he 
is  the  chiefe  officer  to  the  king  within  the  shire ;  for  the  words  of 

his 


(4)  See  Dialog,  de  Scaccar.  lib.  1.  cap.  IG.  which  hath  the  same  title. 

(1)  See  same  explantion  of  judicium,  ante  39.  a. 

(2)  The  difference  between  an  interlocutory  judgment  or  award  and  a  fnal 
principal  or  plenary  judgment  is  hereby  pointed  at;  as  to  which  see  Metcalf  s 
case,  11  Co.  30,  both  questions  in  it  depending  on  the  distinction.  See  also 
Office  of  Exec.  ed.  1676,  chap.  17.  p.  279.  How  the  civil  and  can o/i  laws  dis- 
tinguished between  interlocutory  and  definitive  sentences,  especially  in  point  of 
appeal,  and  between  sentences  merely  interlocutory,  and  interlocutory  sentences 
having  the  effect  of  definitive,  may  be  collected  in  some  degree  by  consulting 
Voet.  ad  Dig.  lib.  42.  tit.  1.  s.  4.  Perez,  in  Cod.  lib.  7.  tit.  62.  Wood's  Civ.  L. 
8vo.  ed.  879.  and  Gilb.  Chanc.  c.  10.  As  to  the  difference  between  interlo- 
cutory and  final  decrees  or  orders  in  our  courts  of  equity,  see  Pract.  Reg.  in 
Chanc.  122,  and  153,  and  Nosle  v.  Foot,  in  Dom.  Proc.  12  March  1739.  On 
the  same  subject  in  our  ecclesiastical  courts,  see  1  Ought.  Ord.  and  Comett's 
Prac.  of  Spirit.  Co.  3d  edit.  229  to  250.  These  references  may  assist  inquiry; 
but  a  far  more  extended  information  will  be 'necessary  before  the  distinctions 
can  be  well  ascertained,  and  the  use  of  them  in  point  of  appeal,  conclusion,  or 
otherwise,  be  fully  understood. — [Note  18.] 


168.  a.  I  Of  Parceners.      L.  3.  C.  1.  Sect.  248. 

his  patent  be,  commisimus  vohis  custodiam  comitatus  nostride,  &c. 

And  he  hath  a  threefold  custodie,  tripUcem  cnstodiom,  viz.  First, 

vitas  justicise  ;  for  no  suit  begins,  and  no  processe  is  served  but 

by  the  sherife.     Also  he  is  to  returne  indifferent  juries  for  the 

triall  of  mens  lives,  liberties,  lands,  goods,  &c.     Secondly,  ritae 

hyis  ;  he  is,  after  long  suits  and  chargeable,  to  make  execution, 

■which  is  the  life  and  fruit  of  the  law.     Thirdly,  vitas  reipuhlicas  ; 

he  \^  jtrincipalis  coiiservator  jmcis,  within  the  countie  (cJ),  which 

is  the  life  of  the  common  wealth,  vita  reipnblicas  pax. 

Vide  the  Second       He  is  called  before,  Sect.  234,  viscount,  in  Latyne,  vicecomes, 

Partofthelnsti-  ^  g_  ^.f^,^  comitis,  that  is,  in  stead  of  the  earle  of  that  countie,  who 

tutes.     .   .0.     .  j^  antient  time  had  the  regiment  of  the  countie  under  the  king. 

*MiiTor,  cap.  1.    For  it  is  said  in  the  Mirror,'^  that  it  appeareth  by  the  ordinance 

sect.  3.  of  antient  kings  before  the  Conquest,  that  the  earles  of  the 

counties  had  the  custodie  or  gard  of  the  counties,  and  when  the 

earles  left  their  custodies  or  gards,  then  was  the  custodie  of 

counties  committed  to  viscounts,  who  therefore  (as  it  hath  been 

Ockam,  cap.        sayd)are  called  victcomites.     And  Ockam  cap.  quidcenturia,  &c. 

QuidCentur.  Ac.  jyoiTO  vicecomes  dicitnr  qnod  viceni  comites  siqypleat. 

^' 31arculpjhus  saith,  this  office  is  Jndiciaria  dignitas;  Lampri- 
Fortcpcue,  cap.     dius,  that  it  is  officium  dignitatis.    Fortescue  saith,  qiiod  vicecomes 
24.  12  l\.  2.         ggi  nohilis  officiarius.     And  see  there,  and  observe  well  his  honour- 
able and  solemne  election  and  creation  at  this  day.     But  to  con- 
firme  all  that  hath  been  said  touching  this  point,  and  to  conclude 
the  same,  among  the  lawes  of  Edward  the  Confessor  (4)  I  finde 
Lambert,  it  thus  recorded.      Vcriim  quod  modd  vacatur  comitatus  olim  apud 

fol.  129.  12.  Britones  temporihus  Rovianoriim  in  regno  isto  Britaninae  vocaha- 

tur  consulatus  et  qui  modd  vocantur  vicecomites  tunc  temporis  vice- 
consides  vocahantur ;  ille  verb  dicehatur  viceconsid,  qui  consule 
absente  ipsius  vices  supplebat  injure  et  in  faro  (5).     Herein  many 

things 

(3)  See  Lamb.  Just.  ed.  of  1602,  p.  12, 13.  and  2  Inst.  174.  in  both  of  which 
books  the  coroner  is  so  styled. 

(4)  Concerning  the  dispute  about  the  authenticity  of  these  laws,  see  notes 
3  and  4.  ant.  68.  b.  to  which  add  Preface  to  8  Co.  Rep.  1  Tyrr.  Hist.  b.  6.  p.  103. 
Ibid.  v.  2.  p.  62.  Brad.  Introd.  to  Eng.  Hist.  260.  and  a  note  by  the  late 
bishop  of  St.  David,  Dr.  Squire,  in  his  book  on  the  Anglo-Saxon  Gov.  in  Engl. 
ed.  of  1753,  p.  219.  Mr.  Selden's  opinion  of  these  laws  was,  that  "as  the 
"  ordinary  copies  are,  and  as  they  speak  in  the  published  volume  of  Saxon 
"  laws,  they  are  not  without  many  mixtures  of  somewhat  later  transcribers." 
Seld.  on  Tithes,  ed.  1618,  p.  225.  A  like  temperate  caution  concerning  these 
laws  is  interposed  by  Sir  Henry  Spelman  and  Mr.  Somner.  Spelm.  Gloss. 
3d  td.  67.  Reliq.  Spelm.  61.  Somn.  on  Gavelk.  101.  But  Dr.  Brady  is  not 
content  with  this;  for,  moved  by  that  excess  of  party  spirit,  which  is  so  de- 
structive of  truth,  and  so  much  tarnishes  his  learned  writings  on  the  English 
history,  he  indiscriminately  and  passionately  rejects  the  whole  body  of  these 
laws.  His  words  in  one  place  are  as  follow:  "The  factious  bishops  and 
"  churchmen,  and  the  seditious  and  dissolute  barons,  made  a  noise  for  king 
"  Edward's  laws.  But  what  they  were  it  is  now  a  hard  matter  to  know. 
"  Those  put  forth  under  his  name  with  Mr.  Lambard's  Saxon  laws  were  none 
"  of  his.  Tlicy  are  incoherent  farce  and  mixture,  and  a  heap  of  nonsense, 
"  put  together  by  some  unskilful  bishop,  monk,  or  clerk,  many  years  after  his 
"  death,  to  serve  the  ends  and  designs  of  the  present  times."  General  Pref.  to 
B  m\  Eng.  Hist.  XXX.     See  further  Wright  Ten.  65.  note  (i).— [Note  19.] 

(  )  The  passage  here  cited  from  the  laws  of  Edward  the  Confessor  seems 
rather  a  remark  by  the  copier  or  translator  of  the  law,  than  a  part  of  the  law 

itself: 


L.  3.  C.  1.  Sect.  248.       Of  Parceners.       [168.  a.  168.  b. 

things  are  worthy  of  observation.  First,  for  the  antiquitie  of 
counties.  Secondly,  that  which  we  called  comitatum,  the 
Romans  more  Latinely  called  consulatum.  Thirdly,  whom  the 
Saxons  afterwards  called  (as  hath  been  said)  shireve  or  earle, 
the  Romans  aiWQd  consul.  Fourthly,  that  the  sherife  was  deputy 
of  the  consull  or  earle;  and  therefore  the  Romans  called  him 
viceconsul,  as  we  at  this  day  call  him  vicecomes.  Fifthly,  that 
the  sherife  in  the  Romans  time,  and  before,  was  a  minister  to 
the  king's  courts  of  law  and  justice,  and  had  then  a  court  of 
his  own,  which  was  the  county  court,  then  called  cui'ia  consu-  Caesar  Polichrj. 
laths,  as  appeareth  by  these  words,  ijisins  vices  supplehat  injure  Huntingdon. 
et  ill  foro.  Sixthly,  that  this  realme  was  divided  into  shires  ie°es "MoTmuc  i. 
and  counties,  and  those  shires  into  cities,  burroughs,  and  towns,  iiuoker,  lib.  2. 
by  the  Brittains :  so  that  king  Alfred's  division  of  shires  and 
counties  was  but  a  renovation  or  more  exact  description  of  the 
same  (6).  Lastly,  the  consequence  that  will  follow  upon  these 
things  being  so  ancient,  (as  in  the  time  of,  and  before  the 
Romans)  the  studious  reader  will  easily  collect.  And  after- 
wards, fol.  135,  amongst  the  laws  of  the  same  king  it  appeareth, 
that  those  whom  the  Saxons  sometimes  called  (and  now  we  call) 
seldermen  or  eorles,  the  Romans  called  senatores,  et  similiter  olim 
apud  Britones  temporihus  Romanorum  in  regno  isto  Britannice 
vocahantur  senatores,  quipostea  temporihus  Saxonum  vocabantur 
aldermani,  non  propter  cetatem,  sed  propter  sapientiam  et  digni- 
tatem ciim  quidam  adolescentes  essent,  Jurisperiti  tamen  et  sup>er 
hoc  experti  (7). 

r  1 6  8 . 1      J8@°"  "  0/  A  is  bailiw  ick. "    It  appeareth  before,  that 
|_     b.     J  the  enquest  must  be  de  vicineto  of  the  place  where  the 

lands  doe  lie,  and  not  generally  de  halivd  tud.  By  this 
it  appeareth,  that  the  sherife  is  halivus,  and  his  county  called 
haliva ;  and  therefore  it  is  good  to  be  seen  what  halivus  origi- 
nally signified,  and  whereof  it  is  derived. 

Baylife  (1)  is  a  French  word,  and  signifies  an  officer  concerned  Flet.  lib.  2. 

cap.  67.      (Cro.  Jam.  178.      Plowdr28.  b.      1  Ro.  Abr.  339.)      Bract,  lib.  3  tract.  2. 

cap.  33.  nil.  3.     Idem,  lib.  3.  fol.  121.  b. 

in 

itself;  and  perhaps  it  is  on  this  account  that  Lambard  distinguishes  this  pas- 
sage in  the  printing  by  an  Italic  letter.  But  whether  the  passage  is  to  be 
deemed  part  of  the  law  or  not,  the  comparison  it  draws  of  the  Roman  deno- 
minations of  their  territorial  government  and  officers  in  Britain  with  those  of 
the  Saxons,  seems  to  me  quite  imaginary.  At  least  I  am  not  able  to  find  any 
trace  of  authority  to  prove  such  an  use  or  application  of  the  words  ^Uonsu- 
"  latus,  consul  and  viceconsul"  amongst  the  Romans  whilst  Britain  was  a  part 
of  their  empire,  as  this  extract  supposes. — [Note  20.] 

(G)  This  agrees  with  the  idea  of  Sir  John  Spelman  in  his  life  of  Alfred,  and 
of  Mr.  St.  Amand  in  his  Essay  on  the  Legislative  Power  of  England.  Dr. 
Stuart  in  his  Historical  Dissertation  of  the  English  Constitution  makes  some 
additional  remarks  in  support  of  the  same  opinion.  See  2d  ed.  of  this  latter 
book,  250.— [Note  21.] 

(7)  The  remark  above  in  note  5,  on  the  former  extract  from  Lambard's 
Anglo-Saxon  Laws  equally  applies  to  this  second  one.  As  to  the  origin  and 
office  of  sheriffs,  see  further  Preface  to  3  Co.  Rep.  Dav.  Rep.  GO.  Dalt.  on 
Sher.  Spelm.  Gloss,  vocibus  comites  comitatus  et  vicecomes,  Seld.  tit.  lion.  ed. 
1681,  p.  627.  2  Henry's  Hist.  Gr.  Brit.  242.  a  note  by  lord  Forteseue  in  his 
ancestor's  book  on  absolute  and  limited  monarchy,  112,  and  Stewart's  Hist. 
Dissert,  on  Engl.  Const,  ed.  241.— [Note  22.] 

(1)  See  ante  61.  b.  at  the  bottom.  The  additional  references  in  the  margin 
on  the  side  of  the  word  hailiff  relate  to  bailiffs  of  manors. 


168.  b.J 


Bract,  lib.  3. 
156.  b. 
Britt.  fol.  56. 
Flet.  li.  2.  ca.63. 
(10  Co.  103. 
Post.  195.  a.) 


Glanv.  li.l.  ca.9. 


10  H.  4.  4. 
(Cro.  Jam.  551. 
584.) 


*Mirror,  ea.  5. 
eect.  2.    Vi. 
Bract,  fo.  409. 
Fleta,  lib.  2. 
cap.  63. 56. 


Of  Parceners.     L.  3.  C.  1.  Sect.  249. 

in  the  administration  of  justice  of  a  eertaine  province ;  and  be- 
cause a  sherife  hath  an  office  concerning  the  administration  of 
justice  within  his  county  or  bailiwick,  therefore  he  called  his 
county  haliva  sua.  For  example,  when  he  cannot  find  the  de- 
fendant, &c.  he  returneth,  non  est  inventus  in  haliva  viea. 

I  have  heard  great  question  made,  what  the  true  exposition  of 
this  word  halivus  is.  In  the  statute  of  Magna  Charta,  chap.  28, 
the  letter  of  that  statute  is,  nuUus  halivus  de  ccetero  ponat  uh'quem 
ad  legem  nianifestam  nee  ad  juramentum  siniplici  loqueld  sua 
sine  testihus  fidelihus  ad  hoc  induct  is.  And  some  have  said,  that 
balivvs  in  this  statute  signifieth  any  judge;  for  the  law  must  be 
waged  and  made  before  the  judge.  And  this  statute  (say  they) 
extends  to  the  courts  of  common  pleas,  king's  bench,  &c.  for 
they  must  bring  with  them  Jidcles  testes,  &c.  and  so  hath  been 
the  usage  to  this  day. 

But  I  have  perused  a  very  ancient  and  learned  reading  upon 
this  statute ;  and  the  reader  taketh  it,  that,  at  the  common  law 
before  this  statute,  he,  that  would  make  his  law  in  any  court  of 
record,  must  bring  with  him  Jideles  testes.  And  this  opinion 
herein  is  warranted  by  Glanvil,  who  wrote  in  the  reign  of  Henry 
the  second.  But  the  reader  holdeth,  that  in  the  courts  which 
were  not  of  record  (2),  as  the  county  court,  the  hundred  court, 
the  court  baron,  &c.  there  the  defendant  without  any  faithfuU 
witnesses  might  before  this  stat.  have  made  his  law,  for  remedy 
whereof  this  act  was  made;  and  therefore  (saith  he)  the  statute 
extendeth  to  the  judges  of  such  courts  as  are  not  of  record.  In 
10  H.  4.  it  is  holden,  that  if  a  lord,  that  hath  a  franchise  in  a 
leet,  doth  not  enquire  of  things  enquirable,  and  punish  them, 
the  sherife  shall  enquire  in  his  turne,  et  si  le  vicount  ne /aire  en 
son  tome,  le  bai/lie  le  roy  enquirer'  quant  il  vient,  ou  autermr/it 
serra  inquise  per  justice  en  eire,  where  haylie  leroy'is,  understood 
justice  le  roy.  And  in  the  Mirror"^  it  is  holden,  that  the  statute 
doth  extend  to  everie  justice,  minister  of  the  king,  steward,  etc. 
and  all  comprehended  under  this  word  haylife. 

The  chiefe  magistrates  in  divers  antient  corporations  are  called 
baylifs,  as  in  Ipswich,  Yarmouth,  Colchester,  &c.  And  haylife 
in  French  is  dicecetes,  nomarcha,  in  English,  a  bailife  or  gov- 
ernor.    But  of  this  thus  much  shall  suffice. 


Sect.  249. 

A  ND  of  the  partition  which  the  sherife  hath  so  made,  he  shall  give 
notice  to  the  justice  (3)  under  his  scale,  and  the  scales  of  every  of  the 
12,  ^c.  And  so  in  this  case  you  may  see,  that  the  eldest  sister  shall  not 
have  the  first  election  (4),  but  the  sherife  shall  assigne  to  her  her  part 
ivhich  she  shall  have,  l^e.  And  it  may  he  that  the  sherife  will  assigne 
first  one  part  to  the  youngest,  ^e.  and  last  to  the  eldest,  ^c- 

" rXDER 


(2)  Concerning  the  distinction  of  courts  of  record,  see  ante  117.  b. 

(3)  In  L.  and  M.  and  in  Boh.  there  is  an  &c.  here. 

(4)  An  &c.  here  in  L.  and  M.  and  in  Boh. 


L.  3.  C.  1.  Sect.  249.     Of  Parceners.      [168.  b.  169.  a. 

"  TJNDER  his  seale."     Note,  the  partition,  made  and   deli-  ^J"^^'-g^°;Jj^^j-  \- 

vered  by  the  sherife  and  jurors  ought  to  be  returned  into  f^^i^'^^^' 
the  court  under  the  seale  of  the  sherife,  and  the  scales  of  the  Fleta,'l.  5.  ca.  9. 
twelve  jurors ;  for  the  words  of  the  judieiall  writ  of  partition, 
which  doth  command  the  sherife  to  make  partition,  are  assumptis 
tecum  12,  &c.  (so  as  there  must  be  twelve)  et  partitionem  inde, 
&c.  scir'  facias  Justiciariis,  c&c.  srtb  sigillo  tuo,  et  sujillis  eorum 
per  quorum  sacramentum  partitionem  illam  feceris,  &c.  And 
this  is  the  reason,  wherefore  in  this  case  the  partition,  which  they 
make  upon  oath  ought  to  be  returned  under  their  scales :  and 
the  reason  of  that  is  for  the  more  strengthening  of  the 

tl69. 1   B@°"  partition  by  the  12,  and  that  the  sherife  should  Lib.  11.  fol.  40. 
a.   '  J   not  returne  what  partition  he  would.     Now  after  all  in  Metcalf's 
this,  this  (c£-c.)   viz.   12,  &c.  doth  imply,  that  the  <=^''- 
principall  judgement  upon  the  partition  so  returned  is,  ideo  con- 
sideraticm  est  per  curiam  quod  partitio  firma  et  stahilis  imper- 
petuum  teneatur  (1).     The  latter  two  (cfec.)  are  evident  (2). 

(1)  See  ace.  ant.  168.  a. 

(2)  Here  I  shall  subjoin  to  Littleton's  explanation  of  the  different  modes  ot 
express  partition  the  following  notices  for  the  aid  of  students  : 

J.  Since  Littleton's  time  a  statute  has  been  made  for  newly  regulating  the 
proceedings  on  a  writ  of  partition,  with  a  view  to  render  them  less  dilatory  and 
more  effectual;  and  this  statute  equally  extends  to  parceners,  join-tenants,  and 
tenants  in  common.  See  8  &  9  W.  3.  c.  31.  What  the  form  of  proceeding 
under  the  writ  of  partition  was  before,  is  explained  in  Flet.  lib.  5.  c.  9.  Bract, 
lib.  2.  c.  33.  Brit.  c.  71,  72,  73,  and  Booth  on  Real  Actions,  244. 

II.  Partition  by  release  between  co-parceners,  which  I  do  not  observe  to  be 
noticed  by  Littleton  or  Coke,  is  mentioned  in  2  Fulbeck's  Paral.  fol.  57.  b._ 

III.  There  is  a  partition  by  judgment  exclusive  of  that  on  the  partitione 
faciendd.     An  instance  of  it  is  stated  in  6  Co.  12.  b.  i     i  •      • 

IV.  Littleton  hereafter  adds  to  the  forms  of  partition  explained  by  him  m 
this  chapter,  one  other  form ;  namely,  partition  by  throwing  into  hotchpot, 
which  is  the  subject  of  Sect.  266. 

V.  Besides  the  writ  of  partition  mentioned  by  Littleton  there  was  another 
also  issuing  out  of  chancery,  which  was  called  a  writ  of  livery  and  partition.     It 
applied,  where  land  holden  of  the  king   in  capite  descended   to  two  or  more 
as  co-parceners,  in  which  case  they  could  not  have  livery  of  their  W  from 
the  crown  without  a  partition,   the  reason  of  which  is  explained  in  Staunt. 
Preroo-  '>-4   b   81   b.     The  various  forms  of  this  writ  of  partition  may  be  seen 
by  consulting  F.  N.  B.  256.  F.  259.  C  261.  B.  C.  and  Reg.  Orig.  316,  317. 
It  differed  from  the  common  writ  de  partitione  faciendd  in  almost  every  respect. 
That  was  directed  to  the  sheriff,  this  to  the  eschcator :  that  was  returnable  in 
the  common  pleas,  this  in  chancery  :  that  was  executed  with  a  jury,  this  with- 
out:  that  was  given  for  the  benefit  of  the  party  suing  it,  this  grew  out  ot  a 
policy  to  increase  the  number  of  the  king's  tenants  in  capite  for  his  advantage  : 
the  partition  in   that  was  confirmed  by  a  judgment  of  the  court,  on  return 
of  the  writ,   the  partition  in  thi^  had  no  such  solemnity  added  to  it;   and 
lastly,  the  partition   on   that  was  conclusive   on  the  parties,  though  infonts, 
and  all  claiming  under  them,  but  the  partition  on  this  was  open  to  subsequent 
inquiry,  and  if  unequal  avoidable  by  scire  facias  in  chancery  or  ^partitione 
faciendd  at  common  law.     See  Staunf.  Prerog.  and  Fitz.  N.  B.  in  the  phic-es 
before  cited,  and  post.  171.  a.  &  b.    See  further  on  the  force  of  such  partition 
in  chancery  29  Ass.  pi.  3.    Bro.  Abr.  Jurisdiction,  114.  Partition,  pi.  10.    But 
this  species  of  partition  under  the  writ  of  livery  is  no  longer  in  force:  for  it 
was  a  mere  incident  to  livery;  and  livery  being  taken  away  by  the  12  tha.  ^. 
c.  24,  as  one  of  the  great  grievances  from  tenure  in  capite,  all  writs  of  livery 
of  course  arc,  as  a  very  learned  writer  has  forcibly  expressed  it,  una  statu  dis- 
persed. 


169.  a.]  Of  Parceners.     L.  3.  C.  1.  Sect.  249. 

persed.     See  Mr.  serjeant  Wynne's  observat.  on  F.  N.  B.  in  his  Miscellany  of 
Law  Tracts,  p.  51. 

VI.  Another  kind  of  partition  in  chancery  unnoticed  by  Littleton  was, 
where  two  persons  succeeded  as  co-parcenary  heirs  to  land  holden  of  the  king 
in  capite,  and  one  of  them  being  within  age  was  in  ward  to  the  crown;  for  then 
the  king's  committee  of  the  infant  heir  might  assent  to  make  partition  with  the 
other  co-parcener,  in  which  case  the  writ  for  livery  to  the  co-parcener  of  full 
age  recited  that  with  such  assent  the  king  had  assigned  certain  estates  for  the 
purparty  of  such  co-parcener,  and  directed  the  escheator  to  give  livery  accord- 
ingly. F.  N.  B.  260.  B.  This  mode  of  partition  in  chancery  is  also  at  an 
end  from  the  same  cause  as  the  writ  of  partition  and  livery. 

VII.  A  new  compulsory  mode  of  partition  has  sprung  up,  and  is  now  fully 
established;  namely,  by  decree  of  chancery  exercising  its  equitable  jnTisdiction 
on  a  bill  filed  praying  for  a  partition  :  in  which  case  it  m  usual  for  the  court 
to  issue  a  commission  for  the  purpose  to  various  persons,  who  proceed  without 
a  jury.  How  far  this  branch  of  equitable  jurisdiction,  so  trenching  upon  the 
writ  of  partition,  and  wresting  from  a  court  of  common  law  its  ancient  exclusive 
jurisdiction  over  this  subject,  might  be  traced  by  examining  the  records  of 
chancery,  I  know  not.  But  the  earliest  instance  of  a  bill  for  partition  I 
observe  to  be  noticed  in  the  printed  books  is  a  case  of  the  40  Eliz.  in  Tothill's 
Transac.  of  Chanc.  title  Partition.  According  to  the  short  report  of  this  case 
the  court  interposed  from  necessity  in  respect  of  the  minority  of  one  of  the 
parties,  the  book  expressing  that  on  that  account  he  could  not  be  made  party 
to  a  writ  of  partition ;  which  reason  seems  very  inaccurate ;  for,  if  lord  Coke 
is  right,  that  writ  doth  lie  against  an  infant,  and  he  shall  not  have  his  age  in  it, 
and  after  judgment  he  is  bound  by  the  partition.  See  post.  171.  b.  But  pro- 
bably in  lord  Coke's  time  this  was  a  rare  and  rather  unsettled  mode  of  com- 
pelling partition  ;  for  I  observe  in  a  case  in  chancery  of  the  6  Cha.  1.  which  was 
referred  to  the  judges  on  a  point  of  law  between  two  co-parceners,  that  the 
judges  certified  for  issuing  a  writ  of  partition  between  them,  and  that  the  court 
ordered  one  accordingly ;  which,  I  presume,  would  scarce  have  been  done  if 
the  decree  for  partition  and  a  commission  to  make  it  had  then  been  a  current 
and  familiar  proceeding  with  chancery.  1  Cha.  Rep.  49.  However  it  appears 
by  the  language  of  the  court  in  a  very  important  cause,  in  which  the  grand 
question  was,  whether  the  lord  chancellor  here  could  hold  plea  of  a  trust  of 
lands  in  Ireland,  that  in  the  reign  of  James  the  Second  bills  of  partition  were 
become  common.  1  Vern.  421.  2  Cha.  Cas.  189.  For  other  reported  cases  on 
bills  of  partition,  see  Toth.  Transact,  tit.  Partition,  1  Cha.  Rep.  235.  3  Cha. 
Hep.  29.  2  Cha.  Cas.  214.  237.  2  Vern.  232.  1  P.  Wms.  446.  2  P.  Wms.  518. 
As  to  the  forms  of  a  commission  of  partition,  see  1  Prax.  Aim.  Cur.  3d  ed. 
93,  94.  Clerk's  Tutor  in  Chanc.  3d  ed.  360.  and  2  Harrison's  Chanc.  last 
ed.  396.  For  cases  in  which  chancery  interposes  by  awarding  commissions  to 
ascertain  boundaries,  which  subject  in  some  degree  connects  with  commissions 
of  partition,  see  Tothill,  84.  126.  130.  Nels.  Ch.  Eep.  14.  121.  1  Cha. 
Rep.  41.  63.  259.  Rep.  temp.  Finch.  17.  154.  239.  462.  96.  Car.  Rep. 
107.  1  Cha.  Cas.  145.  1  Vern.  359.  456.  2  Vern.  38.  and  1  Ves.  453. 
To  these  add  Fitzh.  N.  B.  133.  See  further  4  Ves.  180.  6  Ves.  293.  9  Ves. 
344.  on  the  writ  de  peramhulatione  facienda,  which  being  considered,  may 
perhaps  throw  some  light  on  the  origin  of  this  branch  of  equitable  juris- 
diction ;  and  concerning  the  modes  of  ptartition  by  our  law,  see  the  cases 
under  that  title  in  Fitzh.  Abr.  Bro.  Abr.  and  Viner. — Concerning  partition  by 
the  Roman  law,  see  Fulbeck  in  his  Parallel  of  the  Civil,  Canon,  and  English 
Laws,  b.  2.  p.  57.  This  neglected  but  ingenious  writer  extracts  from  the  Roman 
law  three  actions  having  the  like  object  with  our  writ  of  partition.  These  are 
the  action  defamilidherciscunda,  the  actionpro  socio,  and  the  action  de  communi 
dividendo.  He  applies  the  first  to  partition  amongst  co-heirs,  the  second  to 
that  amongst  join-tenants,  and  the  third  to  that  amongst  tenants  in  common  ; 
an  assimilation  in  which  he  is  partly  followed  by  lord  Stair  in  respect  to  the 

law 


L.  3.  C.  1,  Sect.  250-51.       Of  Parceners.  [169.  a. 

Sect.  250. 

AND  note,  that  partition  hy  agreement  between  parceners  may  he 
made  by  law  betweene  them,  as  well  by  paroll  without  deed,  as  by 
deed  (3). 

HERE  it  appeared!,  that  [r]  not  onely  lands  and  other  things  ^''l\^^^-  ^''^^ 
that  may  passe  by  livery  without  deed,  but  things  also  that  ^^  ^  '^  3 
do  lie  in  grant,  as  rents,  commons,  advowsons  and  the  like,  that  9  H. 4.  Partition, 
cannot  passe  by  grant  without  deed,  whether  they  be  in  one  county  13.  21  E.^3.^38.^ 
or  in  severall  counties,  may  be  parted  and  divided  by  paroll  with-  [^^^  ^^  ^gg.  bO  ' 
out  deed,     [s]  But  a  partition  between  joyntenants  is  not  good  [^^-j  yij^  gj^t. 
■without  deed,  albeit  it  be  of  lands,  and  that  they  be  compellable  290.    3  H.  4.  1. 
to  make  partition  by  the  statutes  of  31  H.  8.  cap.  10*,  and  32  i^  JJ-  0-25. 
H.  8.  cap.  32,  because  they  must  pursue  that  act  by  writ  de  par-  3  ^  ^  9^  \q 
titione  faciendd ;  and  a  partition  between  joyntenants  without  47  E.  3.  22. 
writ  remaines  at  the  common  law,  which  could  not  be  done  by  47  Ass^  8^ 
paroll.     And  so  it  is  and  for  the  same  reason  of  tenants  in  com-  ^^  e.  3.  46. 
mon.     But  if  two  tenants  in  common  be,  and  they  make  parti-  yo  Ass.  8.  lib.  4. 
tion  by  paroll,  and  execute  the  same  in  severalty  by  livery,  this  fo-  '[^•^^-  ^• 
is  good,  and  sufficient  in  law.     And  therefore  where  books  say,  ^'^  ^  ^^  -^.^^^^ 
the  joyntenants  made  partition  without  deed,  it  must  be  intended  is  Eiiz.  358. 
of  tenants  in  common  and  executed  by  liverie.  31 H.  8. 1)ier,46. 

Nota,  between  joyntenants  there  is  a  two-fold  privity,  viz.  \vl  23  il's^'^"^' 
estate  and  in  possession  :  betweene  tenants  in  common,  there  is  Die,-,  29. 
privity  only  in   possession,  and  not    in  estate  :    but  parceners  l  Mar.  Dier,  98. 
have  a  threefold  privity,  viz.  in  estate,  in  person,  and  in  possession,  ^^q^^^^}^^' 

8  Co.  42.     Post.  186.  a.  193.  b.  200.  b.  335.  a.  2  Inst.  403.) 

*  It  should  he  cap.  1.      The  31  H.  8.  c.  10,  reyxdates  precedency  in  the  house  of  lords, 
und  in  no  wise  relates  to  the  subject  of  jointenants. 

Sect.  251. 

A  LSO,  if  tivo  meses  descend  to  tivo  p)arceners,  and  the  one  mease  is 

worth  twenty  shillings  per  annum,  aiid  the  other  but  ten  shillings 

per  annum,  in  this  case  partition  may  be  made  between  them  in   this 

manner  ;  to  wit,  the  one  parcener  to  have  the  07ie  mease,  and  the  other 

parcener 


law  of  Scotland.  Stair's  Instit.  48.  The  second  and  third  of  these  Roman 
actions  are  treated  of  in  lib.  10.  tit.  2  &  3.  of  the  Digest,  tit.  1.  of  the  same 
book,  being  upon  the  action  yi?ww7?i  regundorum,  which  partly  answers  to  our 
bill  in  equity  for  ascertaining  boundaries.  It  is  remarkable  also,  that  Fleta 
represents  the  three  Roman  actions  last  mentioned  as  part  of  our  law.  Flet. 
lib.  5.  c.  9.  p.  309.  See  further  as  to  the  Roman  law  about  piartition, 
1  Dom.  Civ.  L.  by  Strah.  326.  For  partition  according  to  the  French  law, 
see  tit.  partage  in  their  book  ;  and  for  the  like  subject  in  the  Scotch  law,  see 
concerning  the  obligation  of  division,  heires,  portioncrs,  commonticii  and  xcrits 
of  division,  in  Stair's  Instit.  48.  477.  169.  576.  and  in  Erskino's  Instit.  468. 
—[Note  23.^] 

(3)  In  1  Atk.  542.  there  is  a  case  in  equity,  in  which  lord  Hardwicke  allows 
of  a ^aro?  agreement  for  a  partition.  See  infra  note  4,  and  1  Vern.  472. — 
[Note  24.] 


169.  a.  169.  b.]        Of  Parceners.     L.  3.  C.  1.  Sect.  252. 

parcener  the  other  mease;  and  she  which  hath  the  mease  worth  20  shil- 
lings per  annum  and  her  heires  shall  pay  a  yeerely  rent  of  jive  shillings 
issuing  out  of  the  same  mease  to  the  other  parcener  and  to  her  heires  for 
ever,  because  each  of  them  should  have  equality  in  value. 


Sect.  252. 


J^ND 


such  partition  made  hy  paroll  is  good  enough  ;  and  that  parce- 
ner, who  shall  have  the  rent,  and  his  heires,  may  distrein  of  common 
right  for  the  rent  in  the  sayd  mease  worth  tiventy  shillings,  if  the  rent 
of  5  shillings  be  behinde  at  any  time,  in  whose  hands  soever  the  same 
mease  shall  come,  although  there  never  were  any  writing  of  this  made 
bettveene  them  for  such  a  rent. 

[<]  8  E.  3. 16.  ^' T)Y  paroll."  Nota,  here  [^]  a  rent  may  be  granted  for 
21  E^%  s's^'  owelty  of  partition  without  (4)  deed,  even  as  a  rent  in  case 

11  11.  4.  61.  of  a  lease  for  years,  for  life,  or  a  gift  in  taile,  may  be  reserved, 
45  E.  3.  21.  without  deed;  and  so  may  a  rent  be  assigned  to  a  woman  out 
21^1^(5^11  ^^  ^^'^  land,  whereof  she  is  dowable,  &c.  without  deed.     But  al- 

1  Mar.  Dier,  91.  ^eit  an  exchange  for  lands  in  the  same  county  may  be  without 
(Ant.  34.  b.)  deed  ;  yet  a  rent  granted  for  egality  (5)  of  the  same  exchange 
(Mo.  29.)  cannot  be  without  deed.     And  the  cause  of  the  difference  is  ap- 

parent ;  for  coparceners  are  in  by  descent,  and  compellable  to 
make  partition. 

"  The  rent,  &c." 

The  same  law  is  of  common  of  estovers,  or  a  corodie, 
or  a  common  Jg®"  of  pasture,  &c.  or  a  way  granted  ["169.1 
upon  the  partition  by  the  one  coparcener  to  the  other.   L     ^-     J 
All  which  and  the  like,  albeit  they  lie  in  grant,  yet 
upon  the  partition  may  they  be  granted  without  deed. 

[.r]  1  Mariae,  "  Issving  out  of  the  same  mease,  <tc."  [x]  For  if  it  be  granted 

Dyer,  91.  Qyt  of  other  lands,  then  descended  to  the  coparceners,  then  there 

[z]  29  Ass.  23.  must  be  a  deed.   [.:;]  But  if  the  rent  be  granted  generally  (out  of 

29  E.  3.  9.  b.  no  land  in  certaine)  for  owelty  of  partition,  pro  residuo  terrae, 

^"  ^°?;  j^"*;  ^  it  shall  be  intended  out  of  the  purpartie  of  her  that  granteth  it. 

(rost.  252.  b.)  i-    n  t^-    i  i        i  i    »  i  -i-  j 

[«]  15  II.  7. 14.         [«^J  J^t  there  be  three  coparceners,  and  they  make  partition,  and 

29  Ass.  23.  one  of  them  grant  twentj  shillings  pci-  annum  out  of  her  part  to 

ff  P  ■  ^o  ^'  ^'       ^icr  two  sisters  and  their  heires  for  equality  of  partition,  the  gran- 

Wyndham's         ^ccs  are  not  joyntcnants  of  this  rent ;  but  the  rent  is  in  nature  of 

case.  3.  Co.  22.  b.  coparcenary,  aud  after  the  death  of  the  one  grantee  the  moiety  of 

p*^!t"  1 77"  h  \       *^^  ^^^^  shall  descend  to  her  issue  in  course  of  coparcenary,  and 

not  survive  to  the  other,  for  that  the  rent  doth  come  in  recom- 

pence  of  the  land,  and  therefore  shall  en.sue  the  nature  thereof; 

and  if  the  grant  had  beene  made  to  them  two  of  a  rent  of  twenty 

shillings, 

(4)  Here  the  eleventh  edition  of  this  book  has  a  note  questioning  whether 
such  parol  grant  would  be  good  now  in  respect  of  the  29  Cha.  2.  c.  3,  and  Mr. 
Serjeant  Hawkins  in  his  Abridgment  makes  a  like  question.  See  supra  note  3. 
—[Note  25.] 

(5)  Of  eqxiality  in  exchanges,  see  ant.  50.  b.  51.  a.  &  b. 


L.  3.  C.  1.  Sect.  253-54.     Of  Parceners.     [169.  b.  170.  a. 

shillings,  viz.  to  the  one  ten  shillings,  and  to  the  other  ten 
shillings,  yet  shall  they  have  the  rent  in  course  of  coparcenary, 
and  joyne  in  action  for  the  same. 

[Z*]  If  one  coparcener  be  married,  and  for  owelty  of  partition  [h]  29  Ass.  23. 
the  husband  and  wife  grant  a  rent  to  the  other  two  out  of  the  29  E.  .3.  9. 
part  of  the  fern  covert,  this  partition  being  equall  shall  charge     '   '■^-  '■^^ 
the  part  of  the  fern  covert  for  ever. 

[c]  If  two  coparceners  by  deed    indented   alien    both    their  [c]  38  E.  3. 
parts  to  another  in  fee,  rendring  to  them  two  and  their  heireg  a  26.  b. ;  but  see 
rent  out  of  the  land,  they  are  not  joyntenants  of  this  rent,  but  '^"'^  ^^'  ^' 
they  shall  have  the  rent  in  course  of  coparcenary ;  because  their 
right  in  the  land,  out   of  which  the  rent  is  reserved  was  in 
coparcenary. 

"  Mai/  distrein  of  common  right,  &c."       That  is,  [d]  in  this  [rf]  i  Jlaria?, 

case  the  law  doth  give  a  distresse,  lest   the   grantee  should   be  V^^X  ''*,^' 

without  remedy,  for  the   which  upon   the   partition    she  hath  other  the  bookes 

given   a  valuable   recompence  in   land,   which    descended,    &c.  abovesaid. 
And  so  in  the  case  of  dower  abovementioned  (1). 


Sect.  253. 

TN  the  same  manner  it  is  of  all  manner  of  lands  and  tenements,  ^c. 
where  such  rent  is  reserved  to  one  or  to  divers  parceners  upon  such 
partition,  ^c.     But  such  rent  is  not  rent  service,  but  a  rent  charge  of 
common  rigid  (1)*  had  and  reserved  for  equality  of  partition  (2)  f. 

"  T  AN^DS  and   tenements,  &c."     Here    (t£r.)  im- 

[170. "I  plyeth  a  caution,  viz.  that  they  be   such   lands 

a.     J       Jg@"  and  tenements  out  of  which  a  rent  for  egaltie 
of  partition  may  be  granted,  whereof  sufficient  hath 
been  said  before. 

''  Reserved  to  one."  Here  reservation  is  taken  for  a  grant ; 
and  if  it  be  used  upon  the  partition,  doth  amount  in  this  case 
to  a  grant,  which  is  worthy  the  observation. 


Sect.    254. 

4^D  note,  that  none  are  called  parceners  hy  the  common-laio,  hut 
females  or  the  heirs  of  females,  which  come  to  lands  or  tenements  hy 
discent ;  for  if  sisters  p)urchase  lands  or  tenements,  of  this  they  are 
called  joyntenants,  and  not  parceners. 

This  needs  no  explanation. 

Sect. 

*■{"  These  are  notes  1,  and2,of  170.  a.  in  the  XZth  and  Wth  editions. 


(1)  See  ante  34.  b.  153.  a.  and  Shep.  Common.  Assur.  425. 

(1)  *  See  ante  153.  a.  note  1. 

(2)  f  In  L.  and  M.  &c,  here. 


170.  a.  170.  b.J      Of  Parceners.     L.  3.  C.  1.  Sect.  255. 


Sect.  255. 

A  LSO,  if  two  parceners  of  land  in  fee  simple  make  partition  between 
themselves,  and  the  part  of  the  one  valueth  more  than  the  part  of  the 
other,  if  they  were  at  the  time  of  partition  of  full  age,  sc.  of  21  yeares, 
then  the  partition  shall  alway  remaine,  and  he  never  defeated.  But  if 
the  tenements  [ivhereof  they  make  partition)  he  to  them  in  fee  taile,  and 
the  part  of  the  one  is  hetter  in  yearly  value  than  the  part  of  the  other, 
alheit  they  he  concluded  during  their  lives  to  defeat  the  partition  ;  yet  if 
the  parcener,  ivhich  hath  the  lesser  part  in  value,  hath  issue  and  dye, 
the  issue  may  disagree  to  the  partition,  and  enter  and  occupy  in  common 
the  other  p)art  which  was  allotted  to  her  aunt,  and  so  the  other  may  enter 
and  occupy  in  common  the  other  'part  allotted  to  her  sister,  Sj-c.  as  if  no 
partition  had  been  made  (1)  f- 

"  ^ HEX  ike  partition  shall  alway  remaine,  &c."     Hereby 

it  appeareth,   that  the    inequality  of  the  value   shall  not 

9  H.  6.  5.  and      impeach  a  partition  made   of  lands  in  fee  simple  between  copar- 

aS.vVsticL'"'^''  ceners  of  full  age  (3),  no  more  than  it   shall  do  in  case  of  an 

exchange  (4). 

"  They  he  concluded  during  their  lives."  This  inequall  par- 
tition doth  so  conclude  the  parceners  themselves,  as  she  that 
hath  the  unequall  part  shall  not  avoid  it  during  her  life. 

(Post.  352.  a.)  <'  Concluded."     This  word  is  derived  of  con  and  claudo  (5), 

and  in  this  sense  signifieth  to  close  or  shut  up  her  mouth  that 
she  cannot  speake  to  the  contrary. 

11  Ass.  p.  2.  B@"  Husband  and  wife  tenants  in  speciall  taile  of  ri70.'l 

certaine  lands  in  fee  have  issue  a  daughter,  the  wife  L     ^-     J 
dyeth,  the  husband  by  a  second  wife  hath  issue  another 
daughter,  both  the   daughters  enter  (where   the  eldest  is  only 

See  after  the       inheritable)  and  make   partition ;  the  eldest  daughter   is  con- 


ranty  (2) 
(Doctor  and 
Stud.  Co). 


chapter  of  War-  eluded  during  her  life  to  impeach  the  partition,  or  to  say  that 
the  youngest  is  not  heire,  and  yet  she  is  a  stranger  to  the  taile, 
but  in  respect  of  privity  in  their  persons  the  partition  shall 
conclude,  for  a  partition  between  mere  strangers  in  that  case 
is  voyd,  but  the  issue  of  the  eldest  shall  avoid  this  partition  as 
issue  in  taile. 

[r/]  /.  S.  seised  of  lands  in  fee  hath  issue  two  daughters,  Rose 
and  Anne,  bastard  eigne  and  mulier  pukne,  and  dieth.     Rose  and 


34, 


[9]  21  E.  .3, 

35.    2  E.  2 

Bastardy,  19 

11  Ass.  23.    30  Ass.  7. 


ir  E.  3.  59.  (8  Co.  101.  b.     Post.  214.  b.) 


Anne 


f  Tliia  is  note  1  of  170.  h.  in  the  IZth  and  14r7t  editions. 


(3)  Ante  ace.  166.  a. 

(4)  Ante  51.  a. 

(5)  Ace.  ante  37.  a. 

(1)  "j"  This  case  of  Littleton  turns  upon  the  inequalify  of  the  partition;  for 
if  the  parts  are  equal,  it  binds  notwithstanding  infancy.  Ante.  166.  a.  Post. 
173  b.— [Note  26.] 

(2)  See  the  case  of  discontinuance  stated  by  lord  Coke,  post.  373.  b. 


L.  3.  C.  1 .  Sect  256-57.  Of  Parceners.        [170.  b.  171.  a. 

Anne  do  enter  and  make  partition.    (3)  Anne  and  her  heires  are 
concluded  for  ever  (4). 

Sect.  256. 


ALSO,  if  two  parceners  of  lands  in  fee  take  husbands,  and  they  and 
their  husbands  make  partition  bettcecn  them,  if  the  part  of  the  one 
be  lesse  in  value  than  the  part  of  the  other,  during  the  lives  of  their  hus- 
bands the  partition  shall  stand  in  its  force.  But  albeit  it  shall  stand 
during  the  lives  of  their  husbands,  yet  after  the  death  of  the  husband, 
that  woman  which  hath  the  lesser  part  may  enter  into  her  sisters  part  as 
is  aforesaid,  and  shall  defeat  the  partition  (et  defeatera  la  particion). 

"  rpHEY  and  their  husbands."     Here  it  appeareth,  that  the 

wife  must  be  party  to  the  partition,  and  so  are  the  books*  *42  Ass.  22. 

to  be  intended  that  speak  of  this  matter.  8  E.  4.  4. 

^  9  E.  3.  38. 

^^  And  shall  defeat  the  partition."     Note,  the  partition  shall  '^  ^-  ^-  ^^^ 

not  be  defeated  for  the  surplusage  onely  to  make  the  partition  99  ass.  23. ' 

equall,  but  here  it  appeareth  that   it   shall  be  avoyded  for  the  9  H.  6.  5. 

whole.     But  of  this  more  shall  be  said  hereafter  in  this  chapter,  ^^  ^^s-  ^*- 

.scc/('o7ie  264.  [A]     And  though  the  partition  be  unequall,  yet  is  [A]  Vid.  2  E.^2. 

not  the  particion  voyd,  but  voydable;  for  if  after  the  decease  of  ^ui  m  vita  17. 

the  husband,  the  wife  entereth  into  the  unequall  part, 
71. "1    and  agreeth  thereunto,  this  shall  binde,  and  therefore 

Littleton  B^°  used  the  word  (defeatera,)  which  proveth 

it  to  be  voydable. 

Sect.  257. 


L"l^-] 


J^UT  if  the  partition  made  betweene   the  husbands  [perenter   les 
barons  (1)]  were  thus,  that  each  part  at  the  time  of  the  allotment 
made  ivas  of  equall  yearely  value,  then  it  cannot  afterivards  be  defeated 
in  such  cases- 

"  T^ETWEENE  the  husbands  (perenter  les  barons)."     This  is 
mistaken,  for  the  originall  in  perenter  cux,  that  is,  betweene 
the  barons  and  ferns,  and  not  as  it  is  here  betweene  the  barons, 
therefore  this  error  would  be  hereafter  reformed. 

''At 


(3)  In  a  Coke  upon  Littleton  I  have  with  MS.  notes  and  references,  the 
annotator  is  for  excluding  from  such  an  estoppel  as  is  here  stated,  a  partition 
in  pais.  His  note  is  thus'expressed  :  "  If  two  make  partition  in  court  of  record, 
"when  one  of  them  had  no  right,  he  thereby  shall  gain  a  moiety  by  estoppel 
"or  conclusion.  Bro.  Nouv.  Cas.  pi.  300.  But  otherwise  I  conceive  of  a 
"partition  \npais;  though  the  book  speaketh  generally;  and  upon  tjiis  differ- 
"ence  you  shall  read  a  like  case  in  this  booke,  fol.  4G.  a." — [Note  27.] 

(4)  Ace.  Dr.  &  Stud.  dial.  1.  c.  19.  where  mulicr  puisne  sues  livery  with 
bastard  eigne.  See  Bro.  Abr.  Entrie  rongeahlc,  31.  and  Discent,  9.  But  it 
is  said  that  this  sort  of  estoppel  will  not  bind  in  chancery.  Gary's  Rep.  2G. 
See  further  2  Co.  4.  b.  Cro.  Cha.  110.  PoUexf.  67.  and  3  Com.  Dig.  278.— 
[Note  28.] 

(1)  Instead  of  les  barons  it  is  eux  in  L.  and  M.  and  Rah. 


171.  a.J  Of  Parceners.   L.  3.  C.  1.  Sect.  258. 

"At  the  time  of  the  allotment."     Hereby  it  appeareth,  that  if 

the  parts  at  the  time  of  the  partition  be  of  equall  yearely  value, 

9  H.  6.  5,  and      neither  the  wives   nor  their  heyres  shall  ever  avoyd  the  same; 

other  the  bookes  and  the  reason  hereof  is,  for  that  the  husbands  and  wives  were 

abovesauh  compellable  by  law  to  make  partition,  and  that  which  they  are 

compellable  to  do  in  this  case  by  law,  they  may  do  by  agreement 

without  processe  of  (2)  law.    If  the  annuall  value  of  the  land  be 

equall  at  the  time  of  the  partition,  and  after  become  unequall  by 

any  matter  subsequent,  as  by  surrounding,  ill  husbandry,  or  such 

like,  yet  the  partition  remaines  good. 

Judicis  ojicium  est,  nt  res  ita  tempera  rcrum, 
Quserere;  quaesito  tempore  tutus  eris. 

But  if  the  partition  be  made  by  force  of  the  king's  writ,  and 

judgement  thereof  given,  it  shall  binde  the  feme-coverts  forever, 

albeit  the  parts  be  not  of  equall  annuall  value ;  because  it  is  made 

by  the  sherife  by  the  oath  of  twelve  men  by  authority  of  law; 

and  the  judgement  is,  that  partition   shall   remaine  firme  and 

Fal  F.  N.  B.         stable  for  ever,  as  hath  beene  said,     [a]  But  a  partition  in  the 

256.  259,  260,      chancery  where  one  coparcener  is  of  full  age  and  sueth  livery, 

261,  262.  26.3.      ^nd  one  other  is  within  age  and  hath  an  unequall  part  allotted 

''1  E  3  ''si  *^  ^^^'  *^^^  shall  not  binde  her  at  full  age;  for  in  a  writ  directed 

to  the  escheator  to  make  partition,  there  is  a  salvo  jure,  and  there 

is  no  judgement  upon  such  a  partition.     But  if  such  a  partition 

be  equall,  it  shall  binde,  so  that  a  part  of  the  land  holden  in 

capite  be  allotted  to  every  of  the  coparceners,  for  to   that  end 

[6]  Vide  there  is  an  expresse  j9?'oi.uso  in  the  writ.     [6]  And  this  partition 

21  E.  3.  31.         may  be  avoyded  either  by  scire  fac'  in  the  chancery,  or  by  a  writ 

de partitione  faciendd  at  the  common  law  at  her  full  age (3). 

Sect.  258. 

A  LSO,  if  two  coparceners  he,  and  the  youngest  being  within  the  age  of 
ttvcnty-one  years,  partition  is  made  betiveene  them,  so  as  the  part  which 
is  allotted  to  the  youngest  is  of  lesse  value  than  the  part  of  the  other,  in 
this  case  the  youngest,  during  the  time  of  her  nonage,  and  also  when  she 
commcthto  full  age,  scil,  o/21  yeares,  may  enter  into  the  part  allotted  to  her 
sister,  and  shall  defeat  the  partition.  But  let  such  parcener  take  heed 
ivhen  she  comes  to  her  full  age,  that  she  taketh  not  to  her  owne  use  all  the 
profits  of  the  lands  or  tenements  ivhich  ivere  allotted  unto  her ;  for  then 
she  agrees  to  the  partition  at  such  age,  in  which  case  the  partition  shall 
stand  and  remaine  in  its  force-  But  peradventure  she  may  take  the  profits 
of  the  moitie,  leaving  the  profits  of  the  other  moitie  to  her  sister  {!)*. 

Ao 
*   This  is  note  1  of  171.  h.  in  the  I3th  and  lith  editions. 


(2)  In  1  Atk.  541.  there  is  a  case,  in  which  lord  chancellor  Hardwicke  is 
represented  to  say,  that  a  partition  by  agreement  between  two  husbands  will 
not  bind  the  inheritance  of  their  wives.  But  notwithstanding  this  high  autho- 
rity, I  take  the  doctrine  of  Littleton  and  Coke,  that  such  a  partition  will  bind 
the  wives,  if  parties,  mdess  it  he  tinequal,  to  be  clear  law,  and  for  the  cogent 
reason  here  given  by  the  latter.     See  ace.  F.  N.  B.  62.  F. — [Note  29.] 

(3)  Ace.  F.  N.  B.  62.  H.  Yet  see  before  166.  a.  which  seems  contra,  un- 
less what  is  there  expressed  is  applied,  not  to  a  fee-simple,  but  to  an  estate- 
tail,  which  probably  was  lord  Coke's  meaning. 

(1)  *In  L.  and  M.  and  Roh.  an  &c.  here. 


L.  3.  C.  1.  Sect.  259.     Of  Parceners.      [171.  a.  171.  b. 

As  before  in  the  case  of  the  fern  covert,  [c]  so  it  is  in  the  case  [c]  43  Ass.  14. 
of  the  enfant ;  for  if  the  partition  be  equall  at  the  time  of  ^  H.  6.  5^  6. 
the  allotment,  it  shall  binde  him  forever,  because  he  is   com-  g  ^[  3"  24'. 

pellable  bylaw  to  make  partition,  and  he  shall  not  have  10  H.  4.  5. 
ri71."1  his  age  in  SLjKirtitione  (^  faxienda  (2)  ;  and  though  31  *^ss^l6^ 
[_    b.      J   the  partition  be  unequal,  and  the  infant  hath  the  lesser  ^^  j^J  j^i^^l 

part,  yet  is  not  the  partition  void  but  voidable  by  his  i38  Hob.  179.) 
entry ;  for  if  he  take  the  whole  profits  of  the  unequall  part, 
after  his  full  age,  the  partition  is  made  good  for  ever.  And 
therefore  Littleton  here  giveth  him  a  caveat,  that  in  that  case 
he  take  not  the  whole  profits  of  his  unequall  part,  neither  shall 
an  unequall  partition  in  the  chancery  binde  an  infant,  as  appeareth 
before  (3).  But  a  partition  made  by  the  king's  writ  departitione 
faciendd  by  the  sherife  by  the  oath  of  twelve  men,  and  the 
judgement  thereupon  given,  shall  binde  the  infant,  though  his 
part  be  unequall,  causa  qud  sup/ a. 

Sect.  259. 

A  ND  it  is  to  he  understood,  that  when  it  is  said,  that  males  or  females 
be  of  full  age,  this  shall  be  intended  of  the  age  of  21  yeares  ;  for  if 
before  such  age  any  deed  (ascun  fait)  or  feoffment,  grant,  release,  confir- 
mation, obligation,  or  other  writing,  be  made  by  any  of  them,  ^c.  or  if 
any  within  such  age  be  baylife  or  receiver  to  any  man,  ^c  all  serve  for 
nothing,  and  may  be  avoided.^  Also  a  man  before  the  sayd  age  shall  not 
he  sworne  in  an  enquest,  ^c.  (l)t' 

''rHE  law  hath  provided  for  the  safety  of  a  man's  or  woman's 
J-    estate,  that  ||  before  their  age  of  twenty-one  yeares  they  ||  yj^^  gg^t^  402, 
cannot  binde  themselves  by  any  deed  (4),  or  alien  any  land  (5),  403. 
goods  or  chattels  (6).  g  n.'b.^^92.  G. 

Post.  246.  a.  337.  b.  350.  a.  &  b.  380.  a.  Ante  171.  a.     8  Co.  44.  b.) 

'^  Age 
f   This  is  note  1  of  172.  in  the  \Zth  and  litli  editions. 

(2)  Ace.  6  Co.  4.  b.  But  there  the  reason  given  for  an  infant's  not  having 
his  age  in  partition  is  different,  namely,  that  both  coparceners  are  in  possession. 
In  the  Year-Book  of  9  H.  6.  6.  b.  the  reason  is  expressed  to  be  the  prejudice 
which  otherioise  there  might  be  to  the  infant. — [Note  30.] 

(3)  See  the  case  of  partition  of  an  advowson  between  coparceners,  where  one 
is  within  age,  in  F.  N.  B.  36.  D. 

*  See  Lord  Chief  Justice  Eyre's  remark  on  this,  2  H.  Black.  514. 
(1)  t  No.  (frc.  in  L.  and  M.  nor  Roh. 

(4)  See  ante  51.  b.  note  2.  and  52.  a.  note  2.  To  the  references  there  add 
3  P.  Wms.  208. 

(5)  Not  even  though  a  special  power  is  given  to  him,  though  it  is  otherwise 
with  a  feme  covert.  So  held  by  lord  chancellor  Hardwicke  in  a  case  in 
1  Ves.  298.  and  3  Atk.  695.  See  Mo.  512.  But  by  the  7  An.  c.  19,  an  infant 
having  a  real  estate  only  as  a  trustee  or  under  a  mortgage  is  enabled  to  convey 
under°the  direction  of  the  court  of  chancery  or  the  court  of  exchequer.  How- 
ever this  act  is  deemed  not  to  extend  to  trusts  merely  constructive.  2  P.  Wms. 
549.  3  P.  Wms.  387.  Another  exception  to  an  infant's  not  being  able  to  alien 
land  arises  from  the  custom  of  particular  places,  as  the  custom  of  Kent  in  respect 
to  gavelkind  lands,  which  may  be  aliened  by  an  infant  on  attaining  15.  See  the  late 
Mr.  Robinson's  excellent  Treatise  on  Gavelk.  193.  and  Mo.  512.— [Note  31.] 

(6)  But  an  infant  may  before  21  dispose  of  personal  estate  by  last  will,  though 
it  is  controverted  at  what  age  this  testamentary  power  begins  to  attach  in 

infants. 


171.  b.  172.  a.J      Of  Parceners.     L.  3.  C.  1.  Sect.  259. 

"  Aje  of  21  1/cares."  Before  this  age  a  man  or  woman  is 
called  an  enfant. 

Brit.  fol.  65,  60.  "  Deed  (fait)."  (1).  Factum,  Angllce,  a  deed,  and  signifieth 
Pi\^^Vb  %  ^^  ^^^  common  law,  an  instrument  consisting  of  three  things, 
cap.  14.  viz.  writing,  sealing,  and  delivery,  comprehending  a  bargaine  or 

(Perk.  sec.  135.)  contract  between  party  and  party,  man  or  woman.     It  is  called  of 
the  civilians  literarum  ohligatio. 

^^  Feoff ement."  Of  this  word  sufficient  hath  been  TIT'S."! 
B^^sayd  before  in  the  first  chapter  of  the  first  booke.   L     *•     J 

Lib.  3.  fol.  63.  "  Grant^'  Concessio,  is  in  the  common  law  a  conveyance  of 

in  Lincolne  Col-  ^  thing  that  lies  in  grant  and  not  in  livery,  which  cannot  passe 
ge  case.  without  deed ;  as  advowsons,  services,  rents,  commons,  rever- 

sions, and  such  like.     Of  this  also  sufficient  likewise  hath  been 
said  in  the  first  chapter  of  the  first  booke. 

''  Release,  coi}firmatwn,  rf-c."  Of  these  shall  be  spoken  here- 
after in  their  proper  places  and  chapters. 

'*  Ohligation,^^  is  a  worde  of  his  own  nature  of  a  large  extent : 
but  it  is  commonly  taken  in  the  common  law,  for  a  bond  con- 
taining a  penalty,  with  condition  for  payment  of  money  or  to 
do  or  suffer  some  act  or  thing,  &c.  and  a  bill  is  most  commonly 
taken  for  a  single  bond  without  condition. 

*'  Or  other  writing,  he  made  hy  any  of  them,  &c."  Here  by 
[cl]  18  E.  4.  2.  this  (fee.  is  implied  some  exceptions  out  of  this  generality,  [c^]  as 
frh^Q  ^f  ^"  S7  ^^  infant  may  bind  himself  to  pay  for  his  necessary  meat,  drinke, 
Pinchon'scas'e.  apparell,  ncccssary  physicke,  and  such  other  necessaries,  and 
(2  Ro.  Abr.  146.  likewise  for  his  good  teaching  or  instruction,  whereby  he  may 
Cro.  Ehz.  920.  profit  himselfe  afterwards  :  but  if  he  bind  himselfe  in  an  obligation 
Cro.  Cha.  179.  ^^  Other  writing  with  a  penalty  (2)  for  the  payment  of  any  of 
Cro.  Jam.  494.  these,  that  obligation  shall  not  bind  him.  [e]  Also  other  things 
^^O-  . ,  ^  of  necessity  shall  bind  [him],  as  a  presentation  to  a  benefice  (3), 
Plowd  364)  '  for  otherwise  the  laps  shall  incur  against  him.  Also  if  an  infant 
[e]  8  E.  4.  4.  be  an  executor  upon  payment  of  any  debt  due  to  the  testator, 
^  H.  6. 5.  }ie    may    make   an   acquittance  :    but   in    that   case    a   release 

29  Ass  25  without   payment    is   voyd  (4);    and   generally  whatsoever  an 

2  Maria;,  Dyer,  104,  105.     (5  Co.  29.  b.  27.  a.     6  Cro.  3.     Cro.  Cha.  324.  590.  602. 
Mo.  105.     Cro.  Jam.  320.     1  Sid.  41.  259.  446.)  infant 

infants.  On  this  point  I  have  therefore  expressed  my  notions  at  length.  See 
note  6.  of  fol.  89.  b.— [Note  32.] 

(1)  In  the  cases  of  Wells  v.  Gough,  and  of  Oxenham  v.  Horsfall,  in  B.  R. 
Mich.  T.  37  (x.  3,  the  court  is  said  to  have  holden  sealed  award  by  an  arbitrator 
to  be  a  deed  within  the  stamp  duties,  though  it  was  contended,  that  to  constitute 
a  deed  there  should  be  a  contract  and  delivery,  as  well  as  sealing ;  and  that 
otherwise  all  wills,  and  all  warrants  of  magistrates,  would  become  liable  to  the 
deed-stamp-duties  ;  but  quaere  as  to  the  grounds  of  the  decision  ;  and  note,  that 
I  have  seen  a  subsequent  opinion  of  Mr.  serjeant  Hill  concerning  an  award  by 
commissioners  of  an  inclosure  act,  not  quite  accord  with  the  cases  in  B.  R.  I 
have  thus  referred  to. 

(2)  Ace.  1  Ro.  Abr.  729.  pi.  8.  Mo.  679.  Cro.  Eliz.  920.  Godb.  219. 
But  lord  Coke's  words  imply,  that  a  single  bond,  that  is,  one  without  a  'penalty, 
being  given  for  necessaries,  may  be  good  against  an  infant :  and  so  it  hath 
been  frequently  adjudged.  See  March.  145.  1  Ro.  Abr.  729.  pi.  8.  and  1 
Lev.  86.— [Note  33.] 

(3)  See  ace.  ante  89.  a.  and  note  1,  there. 

(4)  Ace.  post.  264.  b. 


L.  3.  C.  1.  Sect.  259.       Of  Parceners.  [172.  a. 

infant  is  bound  to  do  "by  law,  the  same  shall  bind  him,  albeit  he 
doth  it  without  suit  of  law  (5).  But  of  this  common  learning 
this  little  tast  shall  suffice. 

''  Bai/h'fe  or  receiver  to  any  man,  &c."     By  this  &c.  many  F^^ta^  li2>.^2.  ^^ 
things  are  implied,  as  that  by  baylife  is  understood  a  servant  Britton,  foT 62.' ' 
that  hath  administration  and  charge  of  lands  goods  and  chattels  70  Fleta,  lib.  2. 
to  make  the  best  benefit  for  the  owner  against  whom  an  action  °^P^^*-  ^g 
of  account  doth  lie  for  the  profits  which  he  hath  raised  or  made,  ^g  g]  3; 
or  might  by  his  industry  or  care  have  reasonably  raised  or  made,  Account,  40. 
his  reasonable  charges  and  expenses  deducted.     [/]  But  one  gS'l" -bid^^" 
under  the  age  of  twenty -one  yeares  shall  not  be  charged  in  any  3  £  ^'^^  ' 
such  account  (6)  ;  because,  by  intendment  of  law,  before  his  full  (Cro.  Jam.  177. 
age  he  hath  not  skill  and  ability  to  raise  or  make  any  such  im-  1  Loon.  219.) 
provement  and  profit.  infant,  9. 

17  E.  2  Account,  121.     21  E.  3.  8.     10  H.  4.  14.     2  H.  4.  13.'    Regist. 
135.     (Finch,  L.  302,  303.     Noy,  12.) 

An  account  against  the  receiver  is,  when  one  receiveth  money 
to  the  use  of  another  to  render  an  account ;  but  upon  his  account 
he  shall  not  be  allowed  his  expences  and  charges,     [g]  And  [g]  43  E.  3.  31. 
therefore  a  man  cannot  charge  a  baylife  as  a  receiver ;  because  J^jj^'/'g^  ^' 
then  the  bailife,  should  lose  his  expences  and  charges.  (^  Ro.Abr.  119. 

In  an  account  against  a  receiver,  the  plaintife  must  declare  by  2  Inst.  379. 
whose  hands  the  defendant  received  the  money  which  he  shall  4  Leon.^39.^^ 
not  doe  in  the  case  of  a  baylife.    [h]  But  in  some  case  in  an  ac-  |-^-]  3Q  ^^^3  {' 
tion  of  account  against  one  as  receptor  denariorum,  he  shall  have  Account,  127. 
allowance  of  his  expences  and  charges,  and  also  shall  account  47  E.  3.  22. 
for  the  profit  he  received  (7)  or  might  reasonably  receive ;  and  ^^^^l  ^^^^  ^ 
this  was  provided  by  law  in  favour  of  merchants,  and  for  ad-  foi.  334. 
vancement  of  trade  and  trafficke.  ^""-  ^^j-  ^^• 

And  if  two  joynt  merchants  occupy  their  stocke  goods  and  ^^^^'^^_  ^  ^^^ 
merchandizes  in  common  to  their  common  profit,  one  of  them  5  e.  3.  i. 
naming  himselfe  a  merchant  shall  have  an  account  against  the  Lib.  intrat  17. 
other  naming  him  a  merchant,  and  shall  charge  him  as  receptor  ^^'j^  ^  ^^^  p 
denariorum  ipsius  B.  ex  qudcunque  causa  &  contractu  ad  com-  post.  182.  a. 
munem  utilitatem  ipsor^tm  A.  &  B.  provenien'  sicut  per  legem  Cro.  Jam.  410. 
mercatoriam  rationahiliter  monstrare  poterit. 

[i]  If  there  be  two  joyntenants  or  tenants  in  common  of  lands,  t»y^3^27^"  ^^' 
and  the  one  make  the  other  his  baylife  of  his  moity,  he  shall  gg  ^  j  27. 
have  an  action  of  account  against  him  as  bailife  5  and  so  are  the  47  e.  3.  22. 

bookes  to  be  intended,  that  speake  of  an  action  of  account  in  that  F.  N.  B.  118. 

,oN  (Post.  186,  200. 

case  (8).  .  .        b.) 

So  as  there  be  but  three  kinds  of  writs  of  account,  viz.  against 
one  as  gardian,  whereof  Littleton  hath  spoken  before  in  the 
Chapter  of  Socage ;  the  second  against  one  as  baylife;  and  the 
third  as  receiver;  as  here  it  appeareth.     [k'\  For  a  man  shall  ^J^JJ^t' -s_ 

41  E.  3.  ibid.  34.     8  E.  3.  46.     8  E.  4.  6.  b.     F.  N.  B.  119.  D.     (2  Inst.  379. 
F.  N.  B.  119.  C.     1  Ro.  Abr.  119.) 

not 


(5)  See  F.  N.  B.  168.  D.  and  the  notes  b.  &c.  in  the  4to  edition  as  to  infant's 
binding  himself  to  serve. 

(6)  See  ace.  ante  88.  b. 

(7)  See  Dy.  21.  b. 

(8)  But  now  one  jointenant  or  tenant  in  common  may  have  account  agamst 
the  other  as  bailiff  for  receiving  more  than  his  share  of  profits,  though  there  is 
no  appointment  of  him  as  bailiff.  See  4  Anne,  c.  IG.  s.  27.  See  too  1  Leon. 
219.— mote  34.] 

Vol.  II.— 3 


172.  a.  172.  b.]       Of  Parceners.       L.  3.  C.  1.  Sect.  260. 

not  be  charged  in  an  account  as  surveyor,  controller,  apprentice, 
reve,  or  heyward.  And  to  maintain  an  action  of  account,  there 
must  be,  either  a  privity  (9)  in  deed  by  the  consent  of  the  partie, 
[/]  2  Mar.  B.  for  \_l]  against  a  disseisor  or  other  wrongdoer  no  account  doth 
f^n"t?'  u'7  ^^^'>  '^^  ^  privity  in  law  ex  provisione  leijis  made  by  the  law,  as 
pi.  Com.  542!  against  a  gardian  &c.  whereof  sufficient  hath  been  spoken  in  the 
2  H.  4. 12.   "      Chapter  of  Socage  (10). 

33  H.  6.  2. 

4.  H.  7.  6.  Ac.    (F.  N.  B.  119.  C.) 


Shall  not  be  sioorne  in  an  enquest,  &c."     By   ri7S.~| 

[»i]  Bract,  lib.  5.  this  &c.  is  implied  a  maxime  in  law,  [m]  qiiod  minor  L    ^-     J 

fol.  340.  b.  jurare  non  potest.     For  example  [n^  an  infant  cannot 

Lev  50  make  his  law  of  non  summons ;  [o]  and  therefore  the  default 

[o]  26  E.  3.  63.  shall  not  grieve  him ;  for  seeing  the  meane  to  excuse  the  de- 

2  Maria3,  fault  is  taken  away  by  law,  the  default  it  selfe  shall  not  pre- 

r^^f Vid't^l ^vant  j'^^ic®  ^™-     ^"*  7^*'  *^^^  ^^^^  ^^^^  ^^  exception,  that  [p]  an 

cap.  de  Homage  infant  when  he  is  of  the  age  of  12  yeares,  shall  take  the  oath  of 

etcap.de  Fealty,  allegiance  to  the  king  (1) :  and  this  was  as  Bracton  saith  secun- 

Sect.  85.  91.  ^f^^^  j^^g^^  sancti  Edwardi;  bat  indeed  such  was  the  law  in  the 

fol.  124.     "  time  of  king  Arthur  (2).     [j]  An  infant  cannot  upon  his  oath 

Britt.  fol.  73, 74.  make  his  law  an  action  of  debt,     [r]  And  the  husband  and  wife 

et  fol.  19.  Qf  fyjj  g^gg   f-Qj.  ^jjQ  (jgijf^  Qf  ^jjg  ^jfg  before  the  coverture,  shall 

XJ.OtS'*     lib.      \m  111  •  1 

cap.  27.  make  their  law. 

[q]  11  H.  40-     1  H,  7.  25.     15  E.  4.  24.     (Post  295.)     [r]  46  E.  3.  10.     9  E.  4.  24. 
15  B.  4,  2.     21  H.  3.  23.     (Post.  295.  a.     Cro.  Eliz.  161.) 


Sect.  260. 

ALSO^  if  lands  or  tenements  he  given  to  a  man  in  taile,  who  hath  as 
much  land  in  fee  simple,  and  hath  issue  two  daughters  and  die,  and 
his  two  daughters  make  partition  hetweene  them,  so  as  the  land  in  fee- 
simple  is  alloted  to  the  younger  daughter  in  allowance  for  the  lands  and 

tenements 


(9)  See  as  to  this  and  the  king's  prerogative  in  charging  persons  as  account- 
ants the  earl  of  Devonshire's  case,  11  Co.  89.  a. 

(10)  Ante  90.  b. 

(1)  Ace.  ante  68.  b.  and  78.  b.  See  also  128.  a. — Another  exception  is, 
that  he  may  be  sworn  as  a  witness  at  14,  and  before  if  he  appears  to  under- 
stand an  oath,  or  rather  as  it  is  expressed  by  lord  Hale,  hath  competent 
discretion.  11  Mod.  228.  2  Hal.  H.  P.  C.  271.— Also  according  to  lord 
Hale  in  some  cases  of  exigence,  as  in  rape,  an  infant  of  tender  years  may  be 
examined  without  oath. — In  1  Stra.  700,  there  is  a  case  in  which  an  infant  of 
7  years  was  refused.  There  too  the  point  about  examining  infants  as  wit- 
nesses is  ably  argued.  The  same  point  was  touched  upon  incidentally  in  the 
great  case  of  Omichund  and  Barker,  before  lord  chancellor  Hardwicke,  about 
receiving  the  Gentoo's  evidence ;  which  I  more  particularly  refer  to  here,  be- 
cause in  it  lord  Hale's  doctrine  of  admitting  infants  to  give  evidence  in  crimi- 
nal cases  ioithont  oath  is  said  to  have  been  over-ruled  at  the  Old  Bailey  after 
mature  deliberation ;  and  also  by  lord  Raymond.  1  Atk.  29.  See  1  Hal. 
Hist.  P.  C.  302.  634.  and  2  Hal.  H.  P.  C.  279.  and  Lamb.  Just.  24.  1602.  p. 
85.— [Note  35.] 

(2)  See  notes  3  and  4  of  fol.  68.  b. 


L.  3.  C.  1.  Sect.  260.      Of  Parceners.      [172.  b.  173.  a. 

tenements  (en  allowance  des  terres  et  (3)  tenements)  in  taile  allotted  to 
the  elder  daughter,  if,  after  such  partition  made,  the  younger  daughter 
*alieneth  her  land  in  fee  simple  to  another  in  fee,  ^  hath  issue  a  son  or 
daughter  and  dies,  the  issue  may  enter  into  the  lands  intaile  and  hold  and 
occupy  them  in  purparty  with  her  aunt.  And  this  is  for  two  causes.  One 
is,  for  that  the  issue  can  have  710  remediefor  the  land  sold  hy  the  mother,^ 
because  the  land  was  to  her  in  fee  simple;  and  in  as  much  as  she  is  one  of 
the  heires  in  taile,  ^  hath  no  recompence  of  that  ivhich  belongeth  to  her  of 
the  lands  in  taile,  it  is  reason  that  she  hath  her  portion  of  the  lands  tailed, 
and  namely  when  such  partition  doth  not  make  any  discontinuance  (1)  f- 
But  the  contrary  is  holden  M.  10  H.  6.  scil.  that  the  heire  may  not  enter 
upon  the  parcener  who  hath  the  intailed  land,  but  is  put  to  a  formedon. 

"  rpIIE  land  in  fee  si^njile  is  allotted  to  the  younger  daughter." 
It  is  first  to  be  observed  upon  this  whole  case,  that  the  fee 
simple  land  is  allotted  to  the  youngest  daughter,  and  the  land  (4  Co.  121.  h.) 
entailed  to  the  eldest.     This  partition  prinid  facie  is  good  (4) ; 
and  herein  the  partition  difi"ereth  from  the  exchange,  where  in  (Ant.  51.  a.) 
the  exchange  the  estates  must  be  equal. 

But  yet  this  partition  by  matter  subsequent  may  become  void- 
able (as  Littleton  here  puts  the  case.)  The  eldest  coparcener 
hath  by  the  partition  and  the  matter  subsequent  barred  herself 
of  her  right  in  the  fee  simple  lands,  insomuch  as  when  the 
youngest  sister  alieneth  the  fee  simple  lands  and  dieth,  and  her 
issue  entreth  into  halfe  the  lands  entailed,  yet  shall  not  the  eldest 
enter  into  halfe  of  the  lands  in  fee  simple  upon  the  alienee:  for 
by  the  alienation,  the  privitie  of  the  state  is  destroyed. 

"  The  younger  daughter  alieneth  her  land  in  fee  simple, 

[173.1  &e."  The  same  law  it  is,  if  the  youngest  fi@"  daughter  (Post.  174.  b.) 
a.  J  had  made  a  gift  in  tayle,  for  the  reversion  expectant 
upon  an  estate  tayle  is  of  no  account  in  law  (2),  for  that 
it  may  be  cut  off  by  the  tenant  in  tayle.  Otherwise  it  is  of  an 
estate  for  life  or  yeares.  If  in  this  case  the  youngest  daughter 
alien  part  of  the  land  in  fee  simple,  and  dieth,  so  as  a  full  recom- 
pence for  the  land  entailed  descends  not  to  her  issue,  she  may 
waive  the  taking  of  any  profits  thereof  and  enter  into  the  land 
entailed;  for  the  issue  in  taile  shall  never  be  barred  without  a 
full  recompence,  though  there  be  a  warranty  (3)  in  deed  or  in  law 
descended.     If  on  the  other  side  the  eldest  coparcener  alien  the 

laud 

■j-   This  is  note  1  of  173.  a.  in  the  ISth  and  lith  editions. 


(3)  In  L.  and  M.  instead  o/ terres  et  it  is  autres. 

(1)  t  In  L.  and  M.  Koh.  and  the  two  Cambridge  MSS.  these  words  arc 
added,  of  the  tail,  as  iviU  be  said  hereafter  in  the  chapter  of  Discontinuance. 
What  follows  in  this  Section  is  not  in  L.  and  M.  Roh.  nor  the  MSS. 

(4)  Ace.  F.  N.  B.  62.  M. — Here  lord  Hale's  MS.  makes  a  question,  whether 
such  partition  be  void  or  voidable,  being  made  by  husband,  and  cites  M.  30, 
31  Eliz.  B.  li.  Morris  and  Maule.— [Note  36.] 

(2)  For  the  effect  of  this  doctrine  about  reversions  on  estates  tail,  and  with 
what  qualification  it  should  be  understood,  see  the  authorities  collected  in 
1  Vin.  Abr.  141.  pi.  2.  to  which  add  2  Atk.  206.  and  post.  174.  b. 

(3)  Lord  Coke  may  be  here  presumed  to  mean  a  lineal  warranty;  because 
hereafter  he  allows,  and  in  his  time  it  was  the  common  learning,  that  collateral 
warranty  would  bar  the  issue  in  tail  without  recompense.  Post.  374.  b. — 
[Note  37.] 


173.  a.]  Of  Parceners.      L.  3.  C.  1.  Sect.  261. 

land  entayled  anddyeth,  her  issue  shall  have  SLformedon  alone  (4) 
for  tbe  whole  land  entailed;  for  so  long  as  the  partition  con- 
tinueth  in  force  (5),  she  is  only  enheritable  to  the  whole  land 
entailed. 

^^And  hath  no  recompence."  This  is  intended,  as  it  appeareth, 
of  a  full  recompence. 

See  more  of  this  "  Siich  partition  doth  not  malce  any  diacontinnance."  And  the 
in  the  Chapter  of  reason  thereof  is,  for  that  it  passeth  not  by  livery  of  seisin,  but 
Sectio°ne°t.*°''^'   ^^^  partion  ia  in  truth  lesse  than  a  grant,  for  that  it  maketh  no 

degree,  but  each  coparcener  is  in  by  descent  from  the  common 

ancestor. 

"  But  the  contrary  is  holden,  &c."    This  is  no  part  of  Littleton, 

and  is  contrary  to  law,  as  appeareth  by  Littleton  himselfe ;  and 

besides,  the  case  intended  is  not  truly  vouched,  for  it  is  not  in 

20  H.  6. 14.         10  H.  6,  but  in  20  H.  6,  and  yet  there  is  but  the  opinion  of 

Newton,  obiter,  by  the  way.      Vide  F.  tit.  part  1. 

■(•  Probably  Sect.  618;  for  the  general  words  there  used,  or  at  least  the  first  <tc.  in  the 
section,  may,  it  seems,  be  said  to  include  the  case  of  a  partition  ;  and  in  the  commentary 
on  the  same  section  lord  Coke  expressly  mentions  the  case  of  an  exchange,  thongh  not  that 
of  a  partition :  but  he  adds  an  ic. 

Sect.  261. 

ANOTHER  reason  is,  for  that  it  shall  he  accounted  the  folly  of  the 

eldest  sister  (pur  ceo  que  il  serra  rette  la  follj  del  eigne  soer),  that 

she  would  suffer  or  agree  to  such  a  partition,  where  she  might  if  she  would 

have  had  the  moiety  of  the  land  in  fee  simple  and  a  moiety  of  lands 

entailed  for  her  part,  and  so  to  be  sure  without  losse- 

"  A  NOTMER  reason,  dx."     This  is  another  reason  to  prove, 
that  by  the  partition  the  eldest  daughter  hath  concluded 
her  selfe,  as  is  aforesaid. 

"  A  moiety  of  lands  entaikd."     For  if  a  writ  of  partition  had 

been  brought,  the  eldest  should  not  have  been  compelled  to 

take  the  whole  estate  in  tayle,  for  the  prejudice  that  might  after 

ensue,  but  might  have  challenged  the  one  moiety  of  the  lands  in 

taile,  and  another  moiety  of  the  lands  in  fee  simple,  and  this  she 

might  do  ex  provisione  legis.     But  when  she  will  not  submit  her 

to  the  policie  and  provision  of  the  law,  but  betake  herselfe  to  her 

owne  policy  and  provision,  there  the  law  will  not  ayde  her,  as 

here  by  Littleton  it  manifestly  appeareth.     And  so  it  is  in  the 

(*)  26  E.  3.         other  case.     (*)  As  if  a  man  be  seised  of  three  manners  of  equal 

17°  ^^^9  ^^^"         value  in  fee,  and  taketh  wife,  and  chargeth  one  of  the  mannors 

Dower  164.         ffith  a  rent  charge,  and  dyeth,  she  may  by  the  provision  of  the 

18  H.  6.  27.         law  take  a  third  part  of  all  the  mannors  and  hold  them  dis- 

(Ant.  32.  b.         charged;  but  if  she  will  accept  the  entire  mannor  charged,  it  is 

Dyer,  1  Mar.  98.  ^lolden  that  she  shall  hold  it  charged. 

A  partition 

(4)  In  a  Coke  upon  Littleton  I  have  with  MS.  notes  there  is  the  following 
remark. — "  Qneere  of  this;  for  I  think  the  formedon  must  be  brought  in  the 
"  name  of  the  issue  and  the  surviving  parcener,  and  then  the  parcener  to  be 
"  summoned  and  severed,  and  then  the  issue  to  make  a  special  count  and  show 
"  the  partition." — [Note  38.] 

(5)  See  post.  176.  b.  and  Sect.  274. 


L.  3.  C.  1.  Sect.  262.  Of  Parceners.  [173.  b. 

[173.1     B^'A  partition  of  lands  intailed  betweene  parce- 
b.     J   ners,  if  it  be  equall  at  the  time  of  the  partition,  shall 
bind  the  issues  in  taile  for  ever(l),  albeit  the  one  do 
alien  her  part. 

But  here  it  may  be  demanded,  that  seeing  Littleton  saith,  that  it 
shall  be  taken  to  be  the  folly  of  the  eldest  parcener,  &c.  what  if 
so  be  the  eldest  did  not  know  of  the  estate  tayle  either  in  respect 
of  the  antiquity  thereof,  or  for  want  of  having  of  the  evidence, 
or  for  any  other  cause,  what  folly  can  be  imputed  to  her? 

The  answer  is,  that  it  is  presumed  in  law,  that  every  one  is 
conusant  of  her  right  and  title  to  her  owne  land;  and  on  the 
other  side  it  should  be  arrected  (2)  great  folly  in  her  to  be  igno- 
rant of  her  owne  title.  And  therefore  the  reason  of  Littleton 
doth  firmly  hold. 

Sect.  262. 

A  LSO,  if  a  man  he  seised  in  fee  of  a  carve  of  land  hy  just  title,  and  he 
disseise  an  infant  within  age  of  another  carve,  and  hath  issue  two 
daughters,  and  dyeth  seised  of  both  carves,  the  infant  being  then  within 
age,  and  the  daughters  enter  and  make  partition,  so  as  the  one  carve  is 
allotted  for  the  part  of  the  one,  as  per  case  to  the  youngest  in  allowance  of 
the  other  carve  which  is  allotted  to  the  purpartie  of  the  other,  if  after- 
ward the  infant  enter  into  the  carve  whereof  he  was  disseised  upon  the 
possession  of  the  parcener  which  hath  the  same  carve,  then  the  same  par- 
cener may  enter  into  the  other  carve  which  her  sister  hath,  and  hold  in  par- 
cenary with  her-  But  if  the  youngest  alien  the  same  carve  to  another  in 
fee  before  the  entry  of  the  infant,  and  after  the  infant  enter  upon  the 
possessiofi  of  the  alienee,  then  she  cannot  enter  into  the  other  carve  ;  because 
by  her  alienation  she  hath  altogether  dismissed  her  self  to  have  any  part 
of  the  tenements  as  parcener.  But  if  the  youngest  before  the  entry  of  the 
infant  make  a  lease  of  this  for  terme  of  yeares,  or  for  terme  of  life,  or  in 
fee  tayle  saving  thereversion  to  her,  and  after  the  infant  enter,  there  per- 
adventure  otherwise  it  is;  because  she  hath  not  dismissed  her  self e  of  all 
which  was  in  her,  but  hath  reserved  to  her  the  reversion  and  the  fee,  ^c. 

BEFORE  (3)  it  appeareth  that  when  the  privity  of  the  estate 
is  destroyed  by  the  feoffment  of  one  coparcener,  that  upon 
eviction  of  a  moity  by  force  of  an  entayle  against  the  other  she 
shall  not  enter  upon  the  alienee.     But  in  that  case  that  Little- 
ton here  putteth,  when  the  privity  of  the  state  remaineth,  and 
the  part  of  the  one  is  evicted  (*),  she  shall  enter  and  hold  in  co-  (*)15  E.  4.  3.  a. 
parcenary  with  her  other  coparcener ;  and  so  it  is  in  the  case  of  V^^  Littleton. 
an  exchange.     By  reason  of  the  &c.  in  the  end  of  this  Section  ^^^  '  Bastard's 
there  may  two  questions  be  justly  demanded.  case. 

What 

(1)  Ace.  ant.  166.  a.     2  Vern.  233. 

(2)  This  word,  which  is  so  uncommon  that  I  cannot  find  it  noticed  in  any 
dictionary  I  have  seen,  is  apparently  used  for  reckoned.  Lord  Coke  seems  to 
borrow  it  from  Littleton's  use  of  the  word  rette  at  the  beginning  of  the  Section 
here  commented  uponf . — [Note  S9.] 

(3)  Ant.  172.  b. 

■j-  It  has  been  said  that  the  icord  arrected  was  formed  from  the  French  arr6t6,  ad- 
judged; and  that  il  serra  rette  was  used  for  il  serra  an6t€,  it  shall  be  adjudged.  See 
Mr.  Eitso's  Intr.  p.  110.  n.  19. 


[n]  13  E.  4.  3. 

42  Ass.  22. 


[o]  Bastard's 
case,  lib.  4. 
fol.  121. 


173.  b.  174.  a.]        Of  Parceners.    L.  3.  C.  1.  Sect.  262. 

What  if  the  whole  estate  in  part  of  the  purparty  of  one  par- 
cener be  evicted  by  a  title  paramount;  whether  is  the  whole  par- 
tition avoyded,  for  that  Littleton  here  putteth  the  case  that  the 
whole  purpartie  of  the  one  is  defeated? 

The  second  question  is,  whether  if  but  part  of  the  state  of  one 
coparcener  be  evicted,  as  an  estate  in  taile,  or  for  life,  leaving  a 
reversion  in  the  coparcener,  whether  that  shall  avoid  the  parti- 
tion in  the  whole? 

To  the  first  it  is  answered,  that  if  the  whole  estate  in  part  of 
the  purparty  be  evicted,  that  shall  avoyd  the  partition  in  the 
whole,  be  it  of  a  mannor,  that  is  entire,  or  of  acres  of  ground, 
or  the  like,  that  be  severall;  [h]  for  the  partition  in  that  case 
implyeth  for  this  purpose  both  a  warrantie  and  a  condition  in 
law  (4),  and  either  of  them  is  entire,  and  giveth  an 
entry  in  this  case  into  the  whole.  And  so  hath  5®° it  ri74r.l 
been  lately  resolved  [o]  both  in  the  case  of  exchange  L  ^-  J 
and  of  the  partition. 

To  the  second,  if  any  estate  of  freehold  be  evicted  from  the 
coparcener  in  all  or  part  of  her  purparty,  it  shall  be  avoyded  in 
the  whole (1).  As  if  A.  be  seised  in  fee  of  one  acre  of  land  in 
possession,  and  of  the  reversion  of  another  expectant  upon  an 
estate  for  life,  and  he  disseise  the  lessee  for  life  who  makes  con- 
tinuall  clayme;  A.  dyeth  seised  of  both  acres,  and  hath  issue 
two  daughters;  partition  is  made,  so  as  the  one  acre  is  allotted 
to  the  one,  and  the  other  acre  to  the  other;  the  lessees  enter f: 
the  partition  is  avoided  for  the  whole,  and  so  likewise  hath  [p\ 
it  hath  been  lately  resolved. 

[5^]  Yet  there  is  a  diversity  betweene  the  warranty,  and  the 
condition  which  the  law  createth  upon  the  partition.  Where 
one  coparcener  taketh  benefit  of  the  condition  in  law  (2),  she  de- 
feateth  the  partition  in  the  whole.  But  when  she  voucheth  by 
force  of  the  warranty  in  law  for  part,  the  partition  shall  not  be 
defeated  in  the  whole,  but  she  shall  recover  recompence  for  that 
part.  And  therein  also  there  is  another  diversity  betweene  a 
recovery  in  value  by  force  of  the  warranty  upon  the  exchange 
and  upon  the  partition.  For  upon  the  exchange  he  shall  recover 
a  full  recompence  for  all  that  he  loseth.  But  upon  the  partition 
she  shall  recover  but  the  moity,  or  halfe  of  that  which  is  lost, 
to  the  end  that  the  losse  may  be  equall(3). 

Many  other  diversities  there  be  between  exchanges  and  parti- 
tions; for  there  are  more  and  greater  privities  in  case  of  parti- 
tions in  persons  bloud  and  estates,  than  there  is  in  exchanges; 
all  which  were  too  tedious  to  rehearse  in  this  place,  seeing  so 
much  as  hath  been  said  herein  is  suflScient  for  the  explanation 
of  the  cases  of  partition  which  Littleton  hath  put. 

■)■  As  lessee,  in  the  singular  vumber,  is  before  spoken  of  by  lord  Coke,  grammatical 
accuracy  here  requires  the  words  the  lessee  enters,  instead  of  the  lessees  enter.  See 
Mr.  Ititso's  Intr.  p.  118. 


[p]  Bastard's 
case,  ubi  supra. 

[./]  Vide  5  E.  3. 
tit.  Voucher  249. 


(6  Co.  12.  b. 
1  Ro.  Abr.  815. 
4  Co.  122.) 


18  E.  2. 

tit.  Aid,  171. 

19  H.  6.26. 
[Ant.  50.  b.) 


(4)  That  is,  a  condition  to  give  re-entry  and  a  warranty  to  vouch  and  have 
recompense.     See  post.  384.  a. 

(1)  So  it  is  of  an  exchange.  Hob.  152.  Calthorpe's  reading  on  Lord  and 
Copyholder,  92.     1  Ko.  Abr.  815.— [Note  40.] 

(2)  This  is,  hy  entry. 

(3)  See  ace.  the  case  of  dower,  post.  384.  b.  See  also  the  provision  in 
favour  of  the  lord  for  the  third  part  not  devisable  by  the  statute  of  wills  34 
and  35  H.  8.  c.  5.  s.  11. 


L.  3.  C.  1.  Sect.  262.     Of  Parceners.        [174.  a.  174.  b. 

"  Then  she  cannot  enter  into  the  other  carve,  &c."  By  this  is 
also  approved  that  which  hath  beene  often  said  before,  that  when 
the  whole  privity  betweene  coparceners  is  destroyed,  there 
ceaseth  any  recompence  to  be  expected  either  upon  the  condition 
in  law  or  warranty  in  law  by  force  of  the  partition. 

"  By  her  alienation  she  hath  altogether  dismissed  herself  to  (Post.  243.  b.) 
have  any  part  of  the  tenements  as  parcener."     Hereupon  it  fol- 
loweth,  that  if  one  parcener  maketh  a  feoffment  in  fee,  and  after 
her  feoffee  is  impleaded  and  voucheth  the  feoffor,  [r]  she  may  [r]4l  E.  3.  24. 
have  aid  of  her  coparcener  to  deraigne  a  warranty  paramount  (4),  ^^  e.'s  Aid,  24. 
but  never  to  recover  jjro  rata  against  her  by  force  of  the  war-  (H(,i,\  21.  26.) 
ranty  in  law  upon  the  partition ;  for  Littleton  here  saith,  that  by 
her  alienation  she  hath  dismissed  her  selfe  to  have  any  part  of 
the  land  as  parcener,  and  without  question  as  parcener  she  must 
recover  pro  rata,  upon  the  warranty  in  law,  against  the  other 
parcener. 

And  yet  in  some  case  the  feoffee  of  one  coparcener  shall  have 
aid  of  the  other  parceners  to  deraigne  the  warranty  paramount. 
And  therefore  [a]  if  there  be  two  coparceners,  and  they  make  [a]  43  E.  3.  23. 
partition,   and  the  one  of  them  enfeoffes  her  son   and   heire  ^•^^3^5^ 
apparent  and  dyeth,  the  son  is  impleaded,  albeit  he  be  in  by  the  5  g  3  7  * 

feoffement  of  his  mother,  yet  shall  he  pray  in  ayd  of  38  E.  3. 17,  Ac. 

tl74."|  S&^  the  other  coparcener  to  have  the  warranty  para- 
b.    J   mount ;  and  the  reason  [h]  of  the  granting  of  this  aid  gl  ^^.^^'^Jg 

is,  for  that  the  warranty  betweene  the  mother  and  the  ^^2.  ibid.  163. 
son  is  by  law  annulled  (1),  and  therefore  the  law  giveth  the  son  (Post.  384.  b.) 
albeit  he  be  in  by  feoffment,  to  pray  in  ayd  of  the  other  parcener, 
to  deraigne  the  warranty  paramount ;  wherein  is  to  be  observed 
the  great  equity  of  the  common  law  in  this  case; 

Jpsce  etenim  leges  cupiunt  utjnre  regantur. 
[*]  But  if  a  man  be  seised  of  lands  in  fee,  and  hath  issue  two  [*]  2  H.  6. 16. 
daughters,  and  make  a  gift  in  taile  to  one  of  them,  and  dye  ^^^^^ZtY^Ga.i^.) 
seised  of  the  reversion  in  fee  which  descends  to  both  sisters,  and 
the  donee  or  her  issue  is  impleaded,  she  shall  not  pray  in  aid  of 
the  other  coparcener,  either  to  recover  pro  rata,  or  to  deraigne 
the  warranty  paramount ;  for  that  the  other  sister  is  a  stranger 
to  the  state  taile,  whereof  the  eldest  was  sole  tenant,  and  never 
particion  was  or  could  be  thereof  made  (2). 

"  But  if  the  youngest  before  the  entry  of  the  infant  make  a  (Aut.  173.  a.) 
lease  of  this,  &c.  or  in  fee  tayle  saving  the  reversion  to  her,  &c  " 
This  (upon  that  which  hath  been  said)  (3)  needeth  no  explana- 
tion. Only  this  is  to  be  observed,  that,  albeit  it  is  in  the  power 
of  tenant  in  taile  to  cut  off  the  reversion,  yet  if  the  infant  enter 
before  it  be  cut  off,  the  law  hath  such  consideration  of  this  re- 
version, that  she  that  loseth  it  shall  enter  into  her  sister's  part, 
and  hold  with  her  in  coparcenary,  for  that  the  privity  betweene 
them  was  not  wholly  destroyed  (4). 

Sect. 


(4)  See  31  H.  8.  c.  1.  s.  3.  4  H.  7.  3.  a.  and  Plowd.  Mansel's  case,  7.  a.  &  b. 

(1)  Ace.  post.  390.  a.  .  a       i 

(2)  See  post.  177.  b.  contra  as  to  land  given  m  frankmarnage.     See  also 
2  H.6.  16. 

(3)  Ant.  173.  a.  and  note  2,  there. 

(4)  See  ant.  103.  a.  &  b. 


174.  b.  175.  a.]   Of  Parceners.    L.  3.  C.  1.  Sect.  263-64. 


Sect.  263. 

ALSO,  if  there  be  three  or  four  coparceners,  S^c.  which  make  partition 
betweene  them,  if  the  part  of  the  one  parcener  be  defeated  by  such 

awfull  entrie,  she  may  enter  and  occupie  the  other  lands  with  all  the 
other  parceners,  and  compell  them  to  make  new  partition  betweene  them 
of  the  other  lands,  ^c. 


"  jyETWEENE  them  of  the  other  lands,  &c."      This  &c. 
implieth,  that  so  it  is  betweene   the   surviving  parceners 
and  the  heires  of  the  other,  or  betweene  the  heires  of  parceners, 
all  being  dead.  ' 


Sect.  264. 

A  LSO,  if  there  be  two  parceners,  and  the  one  taketh  husband,  and  the 
husband  and  wife  have  issue  betiveene  them,  and  his  wife  dieth,  and 
the  husband  keepes  himself e  in  as  tenant  by  the  curtesie,  in  this  case  the 
parcener  which  surviveth,  and  the  tena^it  by  the  curtesie  may  tvell  make 
partition  between  them,  ^c.  And  if  the  tenant  by  the  curtesie  will  not 
agree  to  make  partition,  then  the  parcener  -which  surviveth  may  have 
against  the  tenant  by  the  curtesie  a  ivrit  de  partitione  facienda,  &c.  and 
compel  him  to  make  partition.  But  if  the  tenant  by  the  curtesie  would 
have  partition  to  be  made  bcttveen  them,  and  the  parcener  which  surviveth 
will  not  have  this,  then  the  tenant  by  the  curtesie  cannot  have  any  remedy 
to  have  partition,  S^c.  For  he  cannot  have  a  ivrit  of  partitione  facienda, 
because  he  is  no  parcener.  For  such  a  ivrit  lyeth  for  parceners  only. 
And  so  you  may  see,  that  a  writ  of  partitione  facienda  lyeth  against 
tenant  by  the  curtesie,  and  yet  he  himself e  cannot  have  the  like  writ. 

"  rPHE  husband  keepes  himselfe  in  as  tenant  hy  the  curtesie.^' 
[6]  24  E.  3.  29.  ^  This  is  no  severance  of  the  state  in  coparcenary,  [6]  for 
Briefe^339  ^^^  Other  coparcener  and  the  tenant  by  the  curtesie  shall  be 

9E.  4.'l3.  joyntly  impleaded;   for  he  doth  continue  the  state  of  coparce- 

19  H.  6.  26.         nary,  as  the  other  parcener  did  (5). 

3  H.  6.  26.  ^  ^ 

3  H.  6.  Ass.  1.        37  H.  6.  8.        21  E.  3.  14.        (Ant.  167.  b.) 

^^  Against  the  tenant  S^^  by  the  curtesie  a  writ  de  f  175.1 
partitione  facienda,  &c."   Here  by  the  f&c.  is  implyed,   L     ^-     J 
that  albeit  that  the  tenant  by  the  curtesie  be  an 
[c]  3  E.  3.  47.       estranger  in  blood,  yet  the  [c]  writ  de  partitione  facienda  clearly 

L^o'¥."j-,„«    lies  against  the  tenant  by  the  curtesie,  because   he  continueth 
16E.  3.  Aid,  129.    .i         °    ,       ^  -^  ' 

19  E.  3.  ib.  144.  ''"^  estate  ot  coparcenary. 

28  E.  3.  5.  If  two  coparceners  be,  and  one  doth  alien  in  fee,  they  are 

tenants  in  common,  and  severall  writs  oip)raicipe  must  be  brought 

against 


(5)  Ace.  post.  175.  b.     See  also  fo.  192.  a.  and  Bro.  Joinder  in  Action,  40. 


L.  3.  C.  1.  Sect.  264.      Of  Parceners.        fl75.  a.  175.  b. 

against  them  (1) ;  and  yet  the  parcener  shall  have  a  writ  of 
partition  against  the  alienee  at  the  common  law,  which  is  a  far 
stronger  case  than  the  case  put  of  tenant  by  the  curtesie. 

"  Such  writ  lyeth  for  parceners  only.^'  Hereby  it  appeareth, 
that  neither  the  tenant  by  the  curtesie,  nor  (much  less)  the 
alienee  of  a  coparcener  shall  have  o.  w^rii  oi  partione  facienda 
at  the  common  law  (2) ;  for  Littleton  saith  here,  that  such  a  writ  [*]  3  E.  3. 47, 48. 
lyeth  onely  for  parceners,  [*]  but  it  may  be  brought  by  a  parce-  ^fi;^^,  gog,  b.) 
ner  against  strangers,  as  it  appeareth  before.  But  a  miper  ohitt 
and  a  rationahili parte  (S)  do  lye  only  betweene  two  coparceners 
on  both  sides. 

If  three  coparceners  be,  and  the  eldest  doth  purchase  the  part  Dier,  1  Marise, 
of  the  youngest,  the  eldest,  having  one  part  by  descent  and  the  98. 
other  by  purchase,  shall  have  a  writ  of  partition  at  the  common 
law  against  the  other  middle  sister,  et  sic  de  similibus.     And  so  p.  n.  b.  52. 
it  is  in  a  far  stronger  case,  if  there  be  three  coparceners,  and  the  Registr. 
eldest  taketh   husband,  and  the  husband  purchase  the  part  of 
the  youngest,  the  husband  for  his  part  is  a  stranger  and  no  parce- 
ner, and  yet  he  and  his  wife  shall  have  a  writ  of  partition  against 
the  middle  sister  at  the  common  law,  because  he  is  seised  of  one 
part  in  the  right  of  his  wife  who  is  a  parcener  (4). 

<'  To  have  partition,  &c."     Here  by  this  &c.  is  included  all 
others  that  be  strangers  in  blood,  whether  they  come  to  their 
estates  by  purchase  or  by  act  in  law.     Since  Littleton  wrote  by 
the  statutes  [d'\  one  joyntenant  or  tenant  in  common  may  have  [d]  31  H.  8. 
a  writ  of  partition  against  the  other ;  and  therefore  at  this  day  cap.  1.^  32  H.  8. 
the  alienee  of  one  parcener  may  have  a  writ  of  partition  against  yj^j'  g^j^j  990. 
the  other  parcener,  because  they  are  tenants  in  common ;  and 
the  like  had  been  attempted  in  former  parliaments  [*],  but  pre-  [«]  Rot.  Pari, 
vailed  not  until  these  latter  statutes.  1  R.  2.  nu.  82. 

fe]  The  tenant  by  the  curtesie  shall  have  a  writ  of  [e]  Brooke,  tit. 
ri75."l  partition  upon  the  statute  of  i^  32  H.  8.  ca.  32.  for  P^'t^'^^-^'  ^1. 
|_     b.     J  albeit  he  is  neither  jointenant  nor  tenant  in  common, 
for  that  a  prsecipe  lyeth  against  the  parcener  and  ten- 
ant by  the  curtesie,  as  hath  been  said,  yet  he  is  in  equall  mis- 
chiefe  as  another  tenant  for  life. 

[/]  If  there  be  three  coparceners  and  a  stranger  purchase  [/]  Mich.  7  & 
the  part  of  one  of  them,  he  and  one  other  of  the  coparceners  f JJ^'^j.^^^^t- 
shall  not  joyne  in  a  writ  of  partition,  neither  by  the  common  law,  ^^^  &  cooke  (l)t 
nor  by  force  of  the  statute ;  for  the  words  of  the  preamble  of  the  Dier,  3  Mariae, 
statute  be  {and  none  of  them  hy  the  law  doth  or  may  know  their  12|^A.  and 
sever  all  parts,  <Ssc.  and  ca7inot  hy  the   laws  of  this  realme  make 
partition  thereof  ivithout  other  of  their  mutuall  assents,  d-c.)  Now 
in  this  case  the  one  of  the  plaintifes,  viz.  the  parcener,  may  have 
a  writ  of  partition  at  the  common  law,  and  the  other  parcener 
being  a  purchaser  may  have  it  by  the  statute;  and  therefore  they 
shall  not  joyne  in  one  writ. 

Chap. 


(1)  Ace.  ant.  176.  b.     But  it  is  no  severance  if  the  alienation  be  only  for 
life.     Post.  192.  a. 

(2)  See  ace.  Dy.  98.  b. 
(8)  See  ant.  161.  b. 

(4)  See  in  F.  N.  B.  62.  S.  the  form  of  the  writ  in  such  a  case. 
(1)  t  S.  C.  is  also  in  Dy.  260.  b. 


175.b.J    Of  Parceners  by  Custome.  L.  3.  C.  2.  Sect.  265. 


Chap.  2.        Parceners  by  Custome.  Sect.  265. 

pAItCENEBS  hy  the  custome  are,  ivJiere  a  man  seised  in  fee  simphj 
or  in  fee  tayle,  of  lands  or  tenements  which  are  of  the  tenure  called 
gavelkind  toithin  the  countie  of  Kent,  and  hath  issue  divers  sons  and 
die,  such  lands  or  tenements  shall  descend  to  all  the  soiis  hy  the  custome, 
and  they  shall  equally  inherit  arid  make  partition  by  the  custome,  as 
females  shall  do,  and  a  writ  of  partition  lieth  in  this  case  as  between 
females.  But  it  behooveth  in  the  declaration  to  make  mention  of  the 
custome.  Also  such  custome  is  in  other  places  of  England,  and  also 
such  custome  is  in  North,-  Wales  (2)  (S),  ^c. 


"  J)UT  it  behooveth  in  the  declaration  to  make  mention  of  the 
custome."     Well  said  Littleton,  [g'\  that  he  in  his  declara- 


(1  Sid.  136. 
Ant.  140.  a.) 

ancient  authors  tion  must  make  mention  of  the  custome,  as  to  say,  that  the  land 

of  the  law  eon-  is  of  the  custome  of  gavelkinde  ;  but  he  shall  not  prescribe  in  it. 

cerning  gavel-  ^^^j  g^  j^  jg  ^f   Burgh  English.     And  these  two  vary  in  that 

Lambert)  verbo  point  from  other  customes;  for  the  law,  when  they  are  generally 

Terra  exseript.  alledged,  taketh  knowledge  of  these  two  (4). 

[</]  5  E.  4.  8.  b.  Iq  r/j j  Domesday  it  is  thus  said  duo  fratres  tenuerunt  in  par- 

Plo  Coin  129  b  ^0^*^  (^)  jw^'s?^*^  habuit  aulam  suam,  etpotuerini  ire  quo  voluerint. 

in  Buckleiscase. 

Vide  Sect.  8.  «  j^^^q  g^c/j,  custome  is  in  other  places  of  England."     Of  this 

jrs\l\lT'  sufficient  hath  been  said  before  (6). 

Doctr.  Plac.  105-)         [h]  Berochesciro.     Hereford. 

"  North 

(2)  In  L.  and  M.  and  the  two  MSS.  it  is  in  Northumberland  and  North 
Wales,  &c. 

(3)  But  by  the  34  and  35  H.  8,  gavelkind  descent  of  lands  in  Wales  is  ex- 
pressly taken  away,  and  all  lands  there  are  made  descendible  to  the  eldest  son 
according  to  the  common  law  of  England.  See  that  statute  c.  26.  s.  91.  and 
128.  Also  in  Kent  various  estates  have  been  descendible  according  to  the 
common  law  by  speciall  statutes  for  this  purpose.  See  Robins,  on  Gavelk.  75. 
—[Note  41.] 

(4)  But  according  to  a  very  accurate  writer  on  gavelkind  this  doctrine  must 
be  restrained  to  the  speciall  descent  of  gavelkind  and  Borough  English  lands, 
which  is  considered  as  the  essence  of  both ;  and  therefore  the  other  customs  in- 
cident to  gavelkind  and  Borough  English  land  must  be  specially  pleaded.  See 
Robins,  on  Gavelk.  41.  For  this  diiFerence  several  authorities  are  cited; 
namely,  as  to  gavelkind,  a  case  in  Cro.  Cha.  562.  another  in  Lev.  79.  1  Sid. 
137.  and  Raym.  76.  and  a  third  in  2  Sid.  153.  and  as  to  Borough  English,  a 
case  in  1  Salk.  243.  I  the  rather  introduce  these  references  because  Mr.  Robin- 
son's Treatise  is  become  very  scarce. — [Note  42.] 

(5)  This  word  means  equality,  being  derived  from  the  adjective  ^jar,  and 
made  a  substantive  by  the  addition  of  agium.  Read  more  concerning  the  termi- 
nation of  agium,  ant.  86.  a.  See  also  as  to  disjKiragatio,  ant.  80. — [Note 
43.] 

(6)  Ant.  14.  a.  and  140.  a.  See  also  book  1.  chap.  7.  of  Robinson  on 
Gavelkind,  where  the  reader  will  see  a  most  learned  dissertation  on  the  origin, 
antiquity  and  universality  of  partible  descents. 


L.3.C.2.S.265.  Of  Parceners  by  Custome.  [175.b.l76.a. 

"  North-  Wales.   Wales,  Wallia.    It  commeth  [i]  of  the  Saxon  [/]  Lamb.  verb, 
word  wealth,  which  signifieth  peregrinus,  or  exterus;   for  the  Welshmen.  Sil- 
Saxons  so  called  them,  because  in  troth  they  were  strangers  to  ^^^  ^^    ^'^   "^' 
them,  being  the  remaine  of  the  old  and  ancient  Britons,  a  wise 
and  warlike  nation  inhabiting  in  the  west  part  of  England. 
These  men  have  kept  their  proper  language  for  above  these 
thousand  years  past;  and  they  to  this  day  call  us  Englishmen 
Saisons  (that  is)  Saxons.     And  the  like  custome,  as  our  author 
here  saith  was  in  North  Wales,  was  also  in  Ireland;  for  there 
the  lands  also  (which  is  one  marke  of  the  ancient  Brittons)  were 
of  the  nature  of  gavelkinde:   but  where  by  their 

t  176.1    Brehon  law  the  CC!7° bastards  inherited  with   their  Vide  Sect. 212. 
a.     J    legitimate  sons,  as  to  the  bastards  that  custome  was 
abolished  (1).     And  agreeing  with  Littleton  in  this 
point,  see  an  old  statute.*     Alitcr  usitatum  est  in  Wallia  qudm  «  gtat.  Walliae, 
in  Anglia,  quoad  successionem  haereditatis,  eo  quod  hsereditas  an.  12  E.  1. 
partibilis  est  inter  hojredes  masctdos,  et  d  tempore  cujus  non  ex- 
titit  memoria partibilis  extitit,  dominus  rex  non  vtdt,  quod  con- 
suetudo  ilia  ahrogetur,  sed  quod  hcereditates  remaneant partibles 
inter  consimiles  hmredes  sicut  fieri  consuevit,  et  fiat  par titio  illius 
sicut  fieri  consuevit  (2 ). 

''Parceners  by  the  custome,  &c."z    Well  sayd  Littleton,  "by 
the  custome,"  for  sons  are  parceners  in  respect  of  the  custome 
of  the  fee  or  inheritance,  and  not  in  respect  of  their  persons,  as 
daughters  and  sisters,  &c.  be.     \K\Etsunt  -participes  quasi  par-  [K]  Bract,  lib.  5. 
tern  capientes,  &c.  ratione  ipsius  rei  quae  partibilus  est,  et  non  ^ol;  428. 
ratione  personarum,  quce  non  sunt  quasi  unus  hceres  et  unum  j,[',  ^\y°'\'     ' 
corpus,  sed  diversi  hceredes,  ubi  tenementum  partibile  est  inter  cap.  9. 
plures  cohceredes  petentes,  qui  descendant  de  eodem  stipite  et  sem- 
per Solent  dividi  ab  antiquo. 

Sect. 


(1)  The  gavelkind  descent  of  lands  in  Ireland  was  an  incident,  to  the  custom 
of  tanistry,  and  as  such  fell  to  the  ground  with  its  principal  in  consequence  of 
a  solemn  judgment  against  the  latter  in  a  case  of  the  fifth  of  James  the  First. 
For  in  this  case,  which  is  excellently  reported  by  Sir  John  Davis,  who  was 
attorney-general  in  Ireland  at  the  time,  see  Dav.  Hep.  28.  But  in  the  reign 
of  queene  Anne  the  policy  of  weakening  the  Roman  Catholic  interest  in  Ire- 
land was  the  cause  of  an  Irish  statute  to  make  the  lands  of  papists  descendible 
according  to  the  gavelkind  custom,  unless  the  heir  conformed  within  a  limited 
time.  See  Robins,  on  Gavelk.  17.  However  now  by  an  Irish  statute  of  17 
&  18  G.  3.  c.  49.  s.  1.  the  descent  of  the  lands  of  papists  is  again  reduced  to 
the  course  of  the  common  law.  Lord  Coke,  from  his  supposing  that  the  Brehon 
law  of  partibility  except  as  to  bastards,  remained  in  Ireland,  seems  not  to  have 
been  aware  of  the  case  of  tanistry.  Indeed  what  he  writes  in  this  respect  was 
before  that  case  more  applicable  to  Wales  than  Ireland;  for  the  statute  of 
Wales  cited  in  the  next  passage,  confirms  the  partible  descent  of  lande  there 
amongst  males,  with  an  exception  excluding  bastards,  whereas  I  doubt  whether 
there  is  any  evidence  of  confirmation  of  the  Brehon  law  with  such  an  exception. 
See  ante  141.  a.  where  lord  Coke  himself  takes  notice  of  a  total  abolition  of 
the  Brehon  law. — [Note  44.] 

(2)  See  ante  175.  b.  note  4. 


176.a.l76.b.]  Of  Parceners  by  Custome.  L.3.C.2.S.266-7. 


Sect.  266. 

ALSO,  there  is  another  partition  which  is  of  another  nature  and  of 
another  forme  than  any  of  the  partitions  aforesaid  he.  As  if  a  man 
seised  of  certaine  lands  in  fee  simple  hath  issue  two  daughters,  and  the 
eldest  is  married,  and  the  father  giveth  part  of  his  lands  to  the  husband 
with  his  daughter  iii  frankmarriage,  and  dyeth  seised  of  the  remnant, 
the  ivhich  remnant  is  of  a  greater  yearely  value  than  the  lands  given 
in  frankmarriage, 

^'  f^IVEfH  part  of  his  lands  to  the  husband  with  his  daughter 
in  frankmarriage." 
Here  it  appeareth,  that  a  gift  in  frankmarriage  may  be  made 
after  marriage,  as  hath  been  sayd  in  the  Chapter  of  Fee  Tayle  (3). 

"  Which  remnant  is  of  greater  yearely  value,  &c."  Admit 
that  the  lands  given  in  frankmarriage  are  of  greater  value  than 
the  lands  descended  in  fee  simple,  shall  the  other  sister  have 
any  remedy  against  the  donees?  It  is  plaine  she  shall  not;  be- 
cause it  is  lavi^full  for  a  man  to  dispose  of  his  own  lands  at  his 
will  and  pleasure. 


Sect.  267. 

TNthis  case,  neither  the  husband,  nor  wife,  shall  have  any  thing  for 
their  purpartie  of  the  said  remnant,  unless  they  will  put  their  lands 
given  in  frankmarriage  in  hotchpot,  ivith  the  remnant  of  the  land  with 
her  sister.  And  if  they  will  not  do  so,  then  the  youngest  may  hold  and 
oceupie  the  same  remnant,  and  take  the  profits  onely  to  her  selfe.  And 
it  seemeth,  that  this  word  (hotchpot)  is  in  English  a  pudding;  for  in 
this  pudding  is  not  commonly  put  one  thing  alone,  but  one  thing  with 
other  things  together.  And  therefore  it  behooveth  in  this  ease  to  put 
the  lands  given  in  franhnarriage  with  the  other  lands  in  hotchpot,  if 
the  husband  and  wife  will  have  any  part  in  the  other  lands. 

"  TN  this  case  neither  the  husband,  nor  wife,  shall  have  any 
rt]8  H.  3.  thing  for  their  purpartie,  &c."     [i]This  gift  in  frankmar- 

Breve/sso.  riage  shall  prima  facie  be  intended  a  sufficient  advancement; 
34  E.  1.  Nuper  ^^^  therefore  the  remnant  shall  descend  to  the  other  coparce- 
?e''3^^49'^^'^'*^"  ^er,  onely  with  this  provision  in  law  tacite  annexed, 
10  Ass.  p.'l4.  that  if  the  B@°- donees  will  put  the  land  into  hotchpot,  ["176.1 
Vi.  10  E.  3.  38.  ttien  she  shall  out  of  the  remnant  make  up  her  part  [  b.  J 
Bractonf  lib.  2.    equall.     But  the  donees  must  do  the  first  act,  and  in 

fol.  77.  lib.  5.  fol.  428.     Britton,  cap.  72.     Fleta,  lib.  6.  cap.  47. 

the 


(3)  See  ante  21  b.     See  also  ace.  as  to  dower  ex  assensu  patris  after  mar- 
riage,  F.  N.  B.  151.  L. 


L.  3.  C.  2.  Sect.  267.  Of  Parceners  by  Custome.  [176.  b. 

the  meane  time  the  whole  fee  simple  land  descends  to  the  other. 
And  this  is  warranted  here  by  Littleton,  viz.  that  the  donees 
shall  have  nothing  for  the  purpartie  of  the  remnant,  unlesse 
they  will  put  their  lands  given  in  frankmarriage  in  hotchpot  so  as 
the  donees  must  do  the  first  act ;  and  more  expressly  after  in  this 
Chapter  (1),  where  he  directly  saith,  that  the  other  sister  shall 
enter  into  the  remnant,  and  them  to  occupy  to  her  own  use, 
unlesse  the  husband  and  wife  will  put  the  lands  given  in  frank- 
marriage  into  hotchpot.  And  herewith  agreeth  Fleta  (2),  who 
saith,  ciim  dicat  tenens  excipiendo,  quod  non  tenetur  petenti 
respondere,  quia  A.  participem  hahet,  &c.  replicari  poterit  a 
petente  quod prsedict'  A.  tenet  quandam partem  in  maritayium  de 
communi  hsereditate,  nee  vult  illud  in  partem,  ponere.  And  here 
are  three  things  (that  I  may  speak  once  for  all)  to  be  observed. 
First,  that  in  this  speciall  case  where  there  be  two  daughters, 
one  of  them  only  shall  inherit  the  lands  in  fee  simple.  Secondly, 
that  in  this  case  there  lieth  no  writ  of  partition :  because  non 
teneni  insimul  et  pro  indiviso.  Thirdly,  if  the  parcener,  to 
whom  the  land  in  fee  simple  descended,  will  not  put  the  lands 
in  hotchpot,  then  may  the  donees  enter  into  the  fee  simple  lands, 
and  hold  them  in  coparcenarie  with  her. 

And  it  seemeth  by  our  old  bookes,  Ik]  that  by  the  ancient  law  M  Glanvil. 
there  was  a  kind  of  resemblance  hereof  concerning  goods.     Si  Bracton!ub.'2. 
autem  post  debita  dedmta,  et  post  deductionem  expensarum  quae  m.  60.  ' 
necessarise  erunt,  id  totum,  quod  tunc  superfuerit,  dividatur  in  Fleta,  lib.  2. 
tres  partes;  quaram  una  pars  relinquatur  pueris  {Z)  si pueros  ^agna  Carta, 

cap.  18.     F.  N.  B.  222.     30  E.  3.  25.     31  E.  3.     Resp.  60.     31  Ass.  1*4.     17  E.  2. 
Detinue,  3.     17  E.  3.  17.     1  E.  2.  Detinue,  56.     31  H.  8.  tit.  Rationab.  parte  bonorum,  6. 

hahuerit 


(1)  See  Sect.  268. 

(2)  See  also  ace.  F.  N.  B.  197.  0. 

(4)  The  chapter  of  Fleta  is  here  referred  to  erroneously.     It  should  be 
cap.  57. 

(3)  Though  pueri  more  commonly  means  hoys,  yet  it  is  plain  that  here  it 
comprehends  children  of  both  sexes;  because  afterwards  liberi  is  used  for 
the  same  purpose.  The  word  is  used  in  the  same  large  sense  in  the  writ  de 
rationahili parte  bonorum;  and  therefore  Fitzherbert  observes,  that  the  son  and 
daughter  may  join  in  that  writ.  F.  N.  B.  122.  C  Also  this  large  sense  of 
jmeri  is  warranted  both  by  the  application  of  the  word  in  the  Roman  law,  and 
by  its  derivation  from  the  Greek  word  n-xlc,  which  is  masculine  or  feminine 
according  to  the  article  before  it.  To  this  effect  Justinian's  Digest,  in  the 
title  de  verborum  significatione,  gives  the  following  extract  from  the  Comraen- 
tary  of  the  Roman  lawyer,  Julius  Paulus,  on  his  famous  predecessor  Sabinus. 
Fueri  ajipellatione  etiam  puella  significatur :  7iam  et  faviinas  puerperas  appel- 
lant recentes  ex  partu ;  et  Grsec^  ■^aiS'tov  communitur  appellatur.  See  Dig. 
lib.  50.  tit.  16.  leg.  163.  and  Menag.  Jur.  Civil.  Amoenitates,  cap.  39.  voce 
puerpera,  where  that  learned  French  writer  expatiates  on  the  etymology  of 
puer.  I  have  been  induced  to  give  this  explanation  of  the  word  j^uer  by  a 
case  in  our  own  law-books,  which  actually  turned  upon  the  question.  Whether 
a  daughter  could  take  lands  under  that  description.  The  case  arose  on  a 
remainder  in  a  settlement  made  by  a  man  on  his  first  marriage  seniori  puero 
of  the  husband  and  the  heirs  of  his  body ;  and  this  was  decided  by  two 
judges  against  one  to  entitle  a  daughter  and  only  child  of  the  first  marriage 
in  preference  to  the  son  of  a  second.  Dy.  337.  b.  However  there  is  a 
much  earlier  case  on  the  construction  of  p>ueri,  in  which  it  was  interpreted 
to  exclude  females.     Hob.  33.  and  the  case  there  cited  from  30  Ass.  47. 

and 


176.  b.  I    Of  Parceners  by  Custome.  L.  3.  C.  2.  Sect.  267. 

hahuerit  defunctus,  secunda  uxori  si  sujoerstes  fuerit,  et  de  tertid 

parte  Jiabeat  testator  liheram  disponendi  facultatem.      Si  auteni 

liheros  non  habeat,  tunc  medietas  defuncto,  et  alia  medietas  uxori: 

si  autem  sine  uxore  decesserit  liheris  existentibus,  tunc  medietas 

de/uncto,  et  alia  medietas  liberas  tribuatur :  si  autem  sine  uxore 

et  liberiSf  tunc  id  totum  defuncto  remanebit.     And  by  the  law 

*  Lamb.  f.  119.    before  the  Conquest  *  was  thus  provided,  sive  qiiis  incuria  sive 

68.  (Post.  185.  b.  inorte  repentind  fuerit  intestat^is  mortuus,  dominus  tamen  nullam 

Ante       .    .;       rerum  suarum  partem  (^prgeter  earn  quae  jure  debetur  herioti 

nomine)  sibi  assumito,  veriim  eas  judicio  suo  uxori  liberis  et 

cognatione  proximis  jtisth  pro  suo  cuiquejure  distribuito. 

[/]  Kegist.  142.        But  it  appeareth  by  the  Register  \l'\  and  many  of  our  bookes, 

34  E.  1.  that  there  must  be  a  custome  alledged  in  some  county,  &c.  (5) 

?e' T^e  ^^'        *^  inable  the  wife  or  children  (5) f  to  the  writ  de  rationabili  parte 

7  e!  4.'  2i.    43  E.  3.  38.     (F.  N.  B.  122.  L.) 

bonorum  ; 

and  30  E.  3.  27.  But  now  indeed,  when  legal  instruments  are  so  universally  ex- 
pressed in  the  English  tone,  it  is  not  probable  that  any  dispute  should  arise  in  our 
courts  of  justice  about  the  interpretation  of  this  Latin  word. — [Note  45.] 

(5)  The  places  usually  named  as  those  in  which  the  customary  division  of 
personalty  on  a  death  prevailed,  and  so  in  favour  of  wife  and  children  restrained 
the  testamentary  power  to  a  third  or  a  moiety,  are  these  :  the  province  of  York, 
the  city  of  London,  and  various  districts  of  Wales.  But  since  lord  Coke's  time 
several  statutes  have  been  made  to  remove  this  restraint  in  each  of  these 
diflFerent  places ;  and  under  those  statutes  the  whole  of  the  personal  estate  is 
now  disposable  by  last  will  in  them  through  England  and  Wales,  with  this 
exception  however,  that  there  is  still  no  statute  affecting  either  the  city  of 
Chester,  which  is  part  of  the  province  of  York,  or  such  other  places  not  within 
that  province,  or  London  or  Wales,  as  may  have  such  a  custom ;  though  whether 
there  be  any  such  places,  I  am  uncertain.     See  for  the  province  of  York,  4  W. 

6  M.  c.  2.  and  2  &  3  An.  c.  5;  for  London  11  G.  1.  c.  18;  and  for  Wales, 

7  &  8  W.  3.  c.  38.  Indeed  Sir  William  Blackstone  treats  the  testamentary 
power  over  personal  estate  as  now  prevailing  through  all  England.  2  Blackst. 
Comm.  9th  ed.  493.  But  if  there  be  no  other  statutes  than  those  he  cites, 
being  the  same  as  are  before  mentioned,  I  take  this  to  be  a  mistake,  so  far  at 
least  as  regards  the  city  of  Chester.  The  fact  is,  that  both  the  cities  of  York 
and  Chester  were  excepted  in  the  4  of  W.  &  M.  and  that  the  2  &  3  An.  take 
away  the  exception  as  to  the  city  of  York  only.  As  too,  the  statutes,  which 
subject  the  custom  of  dividing  the  personal  estate  of  deceased  persons  to  the 
testamentary  power,  do  not  name  any  place  in  England  except  London  and  the 
province  of  York,  it  follows,  that  the  local  custom  of  any  other  part  of  England 
on  this  subject  is  not  disturbed  by  any  statutory  provision.  It  now  only 
remains  to  add  here,  that  though  the  testamentary  power  is  thus  extended  over 
the  whole  personalty,  notwithstanding  the  customs  within  London  or  the 
province  of  York,  or  within  any  part  of  Wales,  yet  in  the  case  of  an  intestacy 
the  customs  of  those  places  still  operate,  there  being  a  special  provision  to  save 
them  and  all  other  peculiar  customs  in  the  statute  of  Cha.  2.  for  distributing 
the  personal  estates  of  intestates.  See  22  &  23  Cha.  2.  c.  10,  See  further  as 
to  the  statutes  about  these  customs  in  the  latter  part  of  note  9,  infra;  also  4 
Burn.  Eccl.  Law,  2d  edit.  346.— [Note  46.] 

(5)  f  In  Swinburne  on  Testaments  there  is  a  curious  dissertation  explaining 
the  custom  of  the  province  of  York  in  respect  to  filial  portions;  and  in  the 
course  of  it,  the  question,  What  sort  of  advancement  shall  exclude  a  child,  is 
considered  at  large.  This  valuable  part  of  Swinburne  is  not  in  the  first 
edition ;  but  was  afterwards  added  by  him.  It  is  otherwise  as  to  many 
additions  in  the  latter  editions  of  his  book ;  these  being  full  of  enlargements 

coming 


L.  3.  C.  2.  Sect.  267.  Of  Parceners  by  Custome.  [176.  b. 

bonorum{G);  and  so  hath  it  beene  resolved  in  parliament  [m].   [m]  3  E.  3. 
But  such  children,  as  be  reasonably  advanced  by  the  father  in  ^^^^^'^^^^ 
his  life  time  with  any  part  of  his  goods,  shall  have  no  further 
part  of  his  goods;  for  the  words  of  the  writ  be,  nee  in  vita 
patris  promoti  fuerunt  (7). 

Note,  the  custom  of  London  is,  that  if  the  father  advance 
any  of  his  children  with  any  part  of  his  goods,  that  shall  bar 
them  to  demand  any  further  part,  unlesse  the  father  under  his 
hand  or  in  his  last  will  do  expresse  and  declare,  that  it  was 
but  in  part  of  advancement  (8),  and  then  that  child  so  partly 

advanced 


coming  from  others,  but  printed  without  discriminating  them  from  Swin- 
burne's own  work.  This  manner  of  treating  authors  in  new  editions  is  ever 
dissatisfactory  and  unjustifiable;  but  in  respect  to  law-books,  it  is  peculiarly 
inconvenient,  the  weight  and  authority  of  these  so  much  depending  on  the 
character  of  the  author.  To  Swinburne  on  this  subject  add  the  title  wills  in 
Dr.  Burn's  Eccles.  Law,  in  the  course  of  which  it  is  learnedly  attempted  to 
give  the  result  of  every  thing  to  be  met  with  on  the  subject  in  Swinburne's 
book  or  elsewhere. — [Note  47.] 

(6)  Ace.  2  Inst.  33.     But  in  this  point  some  of  great  respect  differ  from 
lord  Coke.     Fitzherbert  in  his  commentary  on  the  de  rationabili  jJarte  bono- 
rum  contends,  that  the  distribution,  which  excludes  the  testamentary  power 
from  one  third  or  one  moiety  of  the  personal  estate,  was  in  his  time  the 
general  law  of  the  land,  and  therefore  needed  not  a  special  custom  to  support 
it.     He  is  followed  by  Swinburne  in  the  same  idea,  and  even  by  our  great 
modern  commentator  on  the  law  of  England,  who  cites  Finch's  law  to  prove, 
that  the  general  law  was  taken  to  be  as  represented  by  Fitzherbert  as  late  as 
the  reign  of  Charles  the   First.      However,  Mr.  Justice  Blackstone  states, 
that  about  this  period  the  general  law  insensibly  changed ;  which  amounts  to 
an  admission  that  lord  Coke's  doctrine  of  the  necessity  of  a  special  custom 
for  the  rationabili  parte  bonorum  became  perfectly  established  within  a  few 
years  after  his  advancing  it,  and  that  this  was  so  without  the  aid  of  any  statute. 
It  is  observable  also,  that  Mr.  Justice  Blackstone  considers  Bracton  and  Fleta 
as  clear  authorities  against  lord  Coke.     But  Mr.  Somner,  whose  very  learned 
and  extended  discussion  of  this  subject  seems  to  have  escaped  the  author  of  the 
Commentaries,  though  not  inclined  to  an  entire  agreement  with  lord  Coke,  cites 
various  passages  of  the  same  ancient  authors,  from  which  it  appears,  that  their 
writings  in  this  respect  are  contradictory.     See  in  Somn.  G-avelk.  91.  a  disser- 
tation on  the  question.  Whether  the  writ  DE  rationabili  tarte  bonorum 
was  by  the  common  laic,  or  by  custom.   Nor  is  it  a  slight  testimony  of  its  being 
settled  law  in  lord  Coke's  time  not  to  allow  of  the  writ  de  rationabili  parte 
bonorum  without  a  special  custom,  that  Mr.  Somner,  whose  book  before  cited 
was  finished  as  early  as  1647,  though  not  published  till  the  Restoration,  observes 
on  the  order  of  partition  under  this  writ,  that  it  was  then,  and  that  not  lately, 
antiquated,  and  vanished  out  of  use  in  Kent  and  other  counties,  surviving  only 
in  the  province  of  York,  and  some  few  cities. — [Note  4S.] 

(7)  What  under  the  custom  of  the  province  of  York  ought  to  be  deemed  a 
reasonable  advancement  sufficient  to  bar  the  right  to  a  filial  portion,  is  largely 
discoursed  upon  in  Swinburne  on  Testaments,  part  3.  sect.  18.  For  the  cases 
since  Swinburne's  time,  see  Eq.  Cas.  Abr.  100,  161.  1  Vin.  Abr.  198.  Bura's 
Eccl.  L.  tit.  T7(7fe.— [Note  49.] 

(8)  Mr.  Somner  writes  doubtfully  on  the  preceding  doctrine,  and  makes  it 
questionable,  whether  the  child  advanced  may  not  wave  his  former  portion,  and 
elect  to  take  benefit  of  the  customary  partition  in  the  way  of  hotchpot.  Somn. 
Gavelk.  91.  By  others  the  doctrine  is  absolutely  denied  in  another  form,  by 
insisting,  that  the  advancement  must  be  equal  to  the  customary  share ;  and 
that,  if  the  child  advanced  can  prove  the  advancement  to  be  less,  then  such 

child 


176.  b.j  Of  Parceners  by  Custome.  L.  3.  C.  2.  Sect.  267. 

advanced  shall  put  his  part  in  hotchpot  with  the  executors  and 
widow  (9),  and  have  a  full  third  part  of  the  whole,  accounting 

that 

child  on  the  terms  of  throwing  the  advancement  into  hotchpot  is  entitled  to 
the  benefit  of  the  customary  partition,  notwithstanding  any  declaration  of  the 
father  to  the  contrary.  Green's  Priv.  Lond.  52,  53.  But  in  a  case  before 
lord  Chancellor  Somers,  the  mayor  and  aldermen  of  London  certified  the  custom 
in  terms  not  wholly  agreeing  either  with  lord  Coke  or  with  the  differences  from 
him  before  stated.  According  to  this  certificate,  though  the  advancement  shall 
not  be  equal  to  the  customary  share  at  the  father's  decease,  yet  the  child  so 
advanced  shall  be  excluded  from  any  further  part  of  the  customary  estate, 
unless  the  father  shall  by  his  last  will,  or  some  other  writing  signed  with  his 
name  or  mark,  declare  the  value  of  such  advancement ;  in  which  case  the  child 
advanced,  bringing  the  advancement  into  hotchpot,  shall,  notwithstanding  the 
father's  declaration  of  having  fully  advanced  the  child,  have  as  much  more  as 
will  make  the  advancement  a  full  customary  share.  This  certificate  was  con- 
sidered by  Lord  Somers  as  conclusive  of  the  question ;  and  has  been  since 
referred  to  by  Lord  Chancellor  Hardwicke,  as  settling  the  point.  See  the  case 
of  Chase  v.  Box,  in  1  L.  Kaym.  484.  &  1  Eq.  Cas.  Abr.  154,  in  which  latter 
book  the  certificate  from  the  city  is  given  at  length.  See  also  lord  Hardwicke's 
words  in  1  Ves.  16,  and  those  of  Fortescue,  Master  of  the  Kolls,  in  3  Atk.  45. 
Being  therefore  taken  as  the  rule  of  future  decision,  the  certificate  demands 
particular  attention.  The  result,  with  respect  to  its  operation  upon  the  several 
ideas,  which,  as  is  before  stated,  have  prevailed  concerning  this  point  of  the 
custom,  may  be  thus  stated  : — Mr.  Somner's  notion,  of  a  (jeneral  right  of  elec- 
tion in  the  child  to  wave  his  advancement  and  claim  the  customary  share, 
seems  to  fall  to  the  ground  :  there  being  no  election,  except  where  the  father 
under  his  hand  ascertains  the  advancement  by  confessing  what  its  value  was, 
and  being  so  ascertained  it  can  be  proved  to  be  less  than  what  the  custom  gives. 
The  opinion,  that  the  advanced  child  is  universally  at  liberty  to  prove  his  cus- 
tomary share  greater  than  the  advancement,  and  so  entitle  himself  to  the  benefit 
of  the  customary  partition,  seems  to  fail ;  because  the  terms  of  the  certificate 
appear  to  admit  no  other  evidence  to  ascertain  what  the  value  of  the  advance- 
ment was,  than  the  father's  hand-writing;  though  it  must  be  confessed,  that 
excluding  other  evidence  is  scarce  to  be  satisfactorily  accounted  for,  unless  the 
common  reason  of  the  difficulty  of  taking  an  account  of  such  advancement  shall 
be  deemed  a  sufficient  one.  As  to  lord  Coke's  representation  of  the  custom, 
this  also  receives  some  qualification  from  the  before-mentioned  certificate  ;  for, 
though  it  leaves  him  perfectly  right,  where  the  father  is  silent  about  the 
advancement,  yet  it  crosses  lord  Coke's  opinion  of  the  effect  of  the  father's 
declaring  the  advancement  to  be  in  full,  and  makes  such  declaration  inoperative 
where  the  advancement  admitted  by  the  father's  hand-writing  is  not  actually 
full  and  adequate. — [Note  50.] 

(9)  Here  lord  Coke  extends  the  putting  into  hotchpot  so  as  to  make  it  for 
the  benefit  of  both  of  the  executors  in  respect  of  the  testamentary  third  and  of 
the  wife  for  her  third  part.  But  Salkeld  reports  it  as  the  opinion  of  Sir  Edward 
Northey,  that  the  custom  requires  the  advanced  share  to  be  brought  into 
hotchpot  for  the  benefit  of  other  children  only ;  and  therefore  that  in  case  of 
there  being  no  other  child  besides  the  advanced  one,  such  child  shall  have  his 
full  orphan's  part  without  any  regard  to  what  has  been  already  received. 
Salk.  426.  See  ace.  1  Vern.  345.  2  Vern.  281.  and  629.  See  further 
concerning  this  custom  of  London,  a  discourse  in  justification  of  it  in  2  Stow's 
Survey  of  London.  Strype's  edition  of  1720,  first  Appendix,  61.  and  the 
statute  of  11  Geo.  1.  c.  18.  For  the  cases  on  the  custom,  and  the  statute  of 
11  Geo.  1,  concerning  it,  see  Eq.  Cas.  Abr.  159  to  160.  the  title  Custom  of 
London,  in  New.  Abr.  Yiner's  Abr.  and  2  Eq.  Cas.  Abr.  Com.  Dig.  tit.  Guar- 
dianf  G.  2.  and  the  Contin.  in  same  part,  and  Burn's  Ecc.  L.  tit.  Wills.      Add 

to 


L.  3.  C.  2.  Sect.  268.  Of  Parceners  by  Custome.  [177.  a. 

that  which  was  formerly  given  unto  him  as  part  thereof.  And  this 
is  that  in  effect,  which  the  civilians  call  collatio  honorum  (10). 

[177.~1  "  ^"^  ^i  seemetJi,  that  this  word  (hotchpot)  is  in 

a.     J   English  a  pudding,  &c."     Litthton  both  here  and  in 
other  places  searcheth  for  the  signification  of  words, 
in  all  arts;  a  thing  most  necessary;  tor  ianor  at  is  terminis  igno- 
ratur  et  ars.      Vide  i(yv Etymologies,  Sect.  95. 119. 135.  154.  164. 
204.  234,  &c. 

HiUspot  or  hotspot  is  an  old  Saxon  word,  and  signifieth  so  Vide  Brit.  cap. 
much  as  Littleton  here  speaks.     And  the  French  use  hotchpot  '^^^^'^q'  ^^' 
for  a  commixion  of  divers  things  together.     It  signifieth   here  jq  ^  3^  33^ 
metaphorically  in  partem  positio.     In   English  we  use  to  say  24  E.  3.  27. 
hodgepodge,  in  L-dt\ne  farrago  or  miscellaneum.   ^  Re^isf320^' 

The  residue  of  this  section  needeth  no  explication.  FiTta,  lib.  6. 

ca.  47.  (1)  Mich.  10  E.  1.  coram,  rege  Hereford  in  thesaur. 


Sect.  268. 


A™ 


this  tearme  (hotchpot)  is  but  a  tearme  simiUtudinart/,  and  is  as 
much  to  say,  as  to  put  the  lands  in  franhnarriage  and  the  other 
lands  in  fee  simple  together  ;  and  this  is  for  this  intent,  to  know  the  value 
of  all  the  lands,  sell,  of  lands  giveyi  in  franhmarriage,  and  of  the 
remnant  tohich  were  not  given,  and  then  partition  shall  be  made  in  form 
following.  As,  put  the  case  that  a  man  be  seised  of  30  acres  of  land  in  fee 
simple,  every  acre  of  the  value  of  12  pence  by  the  yeare,  and  that  he  hath 
issue  two  daughters,  and  the  one  is  covert  baron,  andthe  father  gives  ten 
acres  of  the  30  acres  to  the  husband  with  his  daughter  in  franhmarriage, 
and  dyeth  seised  of  the  remnant,  then  the  other  sister  shall  enter  into  the 
remnant,  viz.  into  the  20  ac7-es,  and  shall  occupy  them  to  her  own  use, 

unlesse 


to  these  March,  107.  Forrest.  130.  Barnard.  Ch.  Rep.  430.  2  Atk.  43.  523. 
644.  and  3  Atk.  213.  616.  See  also  Flet.  1.  2.  p.  125.— Note,  that  though  the 
11  Gr.  1.  c.  18,  enables  making  a  will  of  the  whole  personalty  notwithstanding 
the  custom,  yet  this  is  with  the  exception  of  freemen  agreeing  by  writing 
upon  or  in  consideration  of  marriage,  or  otherwise  to  be  subject  to  the  custom. 
In  this  respect  therefore  there  is  a  diiference  in  the  form  of  the  statute  altera- 
tion of  the  custom  as  to  London,  and  the  alteration  as  to  Wales  and  the  pro- 
vince of  York,  the  statutes  as  to  these  too  latter  not  providing  for  an  agree- 
ment to  abide  by  the  custom.  Perhaps  however  it  may  be  doubted  whether 
an  express  provision  was  necessary  to  create  such  an  exception ;  but  on  this 
point  I  do  not  mean  to  oS"er  any  opinion. — [Note  51.] 

(10)  See  on  the  Collation  of  Goods,  Dig.  lib.  37.  tit.  6.  1  Dom.  Civ.  L.  by 
Strah.  687. — The  Roman  law  in  respect  to  the  collation  of  goods  deserves  the 
particular  attention  of  the  English  lawyer;  as  our  statute  for  distribution  of  the 
personal  estate  of  intestates  contains  a  like  provision  to  prevent  children 
advanced  in  the  lifetime  of  the  intestate  from  having  double  portions,  which 
was  apparently  borrowed  in  some  degree  from  the  collatio  honorum,,  and  may 
therefore  be  considerably  influenced  in  the  construction  by  the  rules  of  the 
Roman  law  and  the  doctrine  of  the  civilians  on  that  title.  See  22  &23  Ch.2. 
c.  10.  s.  5.  Forrest.  276.  See  also  for  the  cases  in  general  on  this  part  of  the 
statute  of  distribution,  11  Vin.  Abr.  189.  2  Com.  Dig.  145.  Continuation  of 
same  book  176.  and  Eq.  Cas.  Abr.  248.— [Note  52.] 

(1)  This  reference  to  Fleta  is  wrong.     It  should  be  lib.  5.  cap.  9.  p.  314. 

Vol.  n.— 4 


177.a.&b.l78.a.]  Parceners  by  Cnstome.  L.3.C.1.S.269. 

unlesse  the  husband  and  his  wife  will  put  the  10  acres  given  infranh- 
marriage  with  the  20  acres  in  hotchpot,  that  is  to  say,  together ;  and  then 
when  the  value  of  every  acre  is  knoivn,  to  wit,  what  every  acre  valueth 
by  the  year,  and  it  is  assessed  or  agreed  between  them,  that  every  acre 
is  worth  by  the  year  12  pence,  then  the  partition  shall  be 
^^^^made  in  this  manner,  viz.  the  husband  and  tvife  shall  have  ri77. 1 
besides  the  \0  acres  given  to  them  in  frankmarriage  ^  acres  in  L  ^-  J 
severaltie  of  the  20  acres,  and  the  other  sister  shall  have  the 
remnant,  scil.  15  acres  of  the  20  acres  for  her  purpartie,  so  as  accounting 
the  10  acres  which  the  baron  and  feme  have  by  the  gift  in  frankmarriage, 
and  the  other  5  acres  of  the  20  acres,  the  husband  and  wife  have  as 
much  in  yearly  value  as  the  other  sister. 


Bract,  lib.  2.  A  ND  herewith  in  expresse  tearmes  agreeth  Bracton,  Britton, 

fol.  77.  lib.  5.  XI  and  Fleta,   and   all  the  books  abovesaid  and  many  others, 

cap  72  and' '  "^'^'^  ^'  ^^  worthj  the  observation  [?;],  that  after  this  putting  into 

•  Fleta,  lib.  6.  hotchpot,  and  partition  made,  the  lands  given  in  frankmarriage 

ca.  47.  are  become  as  the  other  lands   which  descended  from  the  com- 

10  E  3  37  T^oxi  ancestor,  and  of  these  lands  if  she  be   impleaded  [o]  she 

[7i]  10  E.  3.  37.  shall  have  aide  of  another  parcener  as  if  the  same  lands  had 

10  Ass.  14.  descended  (1).     So  the  coparcener  that  hath  a  rent  granted  to 

Fol  29  Ass  23  ^^"^  ^^^  Owelty  of  partition,  as  is  aforesaid,  hath  the  rent,  aa  if  it 

(Ant.  169.  b.)'  had  descended  to  her  from  the  common  ancestor. 


(Hob.  10.(     (Ant.  23.  a.)  beCt.  269. 

A  ND  so  alwaies  upon  such  partition  the  lands  given  in  frankmarriage 
remaine  to  the  donees  and  to  their  heires  according  to  the  forme  of  the 
gift :  for  if  the  other  parcener  should  have  any  of  that  which  is  gioen  in 
frankmarriage,  of  this  ivould  ensue  an  inconvenience  and  a  thing  against 
reason,  which  the  law  will  not  suffer.  And  the  reason,  ivhy  the  lands 
given  in  frankmarriage  shall  be  put  in  hotchpot,  is  this.  When  a  man 
giveth  lands  or  tenements  in  frankmarriage  with  his  daughter,  or  with  his 
other  cousin,  it  is  intended  by  the  law,  that  such  gift  made  by  this  word 
[frankmariage)  is  an  advancement,  and  for  advancement  of  his 
daughter,  or  of  his  cousin,  and  namely  when  Jg^^"  the  donor  ri78. 1 
and  his  heires  shall  have  no  rent  nor  service  of  them,  but  feal-  \_  \>.  \ 
tie,  untill  the  fourth  degree  be  past  (l)t,  (tanque  le  quart 
degree  soit  passe,  &c.)  And  for  this  cause  the  law  is,  that  she  shall 
have  nothing  of  the  other  lands  or  tenemeiits  descended  to  the  other  par- 
cener, Sj-c.  unlesse  she  will  put  the  lands  given  in  frankmarriage  in  hotch- 
pot, as  is  said.  And  if  she  will  not  put  the  lands  given  in  frankmar- 
riage in  hotchpot,  then  she  shall  have  nothing  of  the  remnant,  because 
it  shall  be  intended  by  the  law,  that  she  is  sufficiently  advajiced,  to  which 
advancement  she  agreeth  and  holds  her  selfe  content. 

''OF 


(1)  See  ant.  174.  b.  contra  as  to  gift  in  tail  to  a  daughter  not  being  in 
frankmarriage. 

(2)  t  See  ant.  21.  b. 


L.  3.  C.  2.  S.  270-71-72.    Of  Parceners.      [178.  a.  178.  b. 

"f^F  this  would  ensue  an  inconvenience  and  a  thing  against 
reason,  ivhich  the  law  will  not  suffer." 

Quod  est  inco7iveniens  ant  contra  rationem  non  permissum  est  Regula. 

in  lege.  Hereby  it  appeareth,  as  it  hath  been  often  noted,  [o]  that  [o]  Vid.  Sect. 

an  argument  ab  inconvenienti  aut  ah  eo  quod  est  contra  rationemis  1^8, 139.  231. 

foTcihle  inlaw,  [p]  Nihil  enim  quod  est  inconveniejis,  est  licituni-\.  ^22. 

"  Untill  the  fourth  degree  he  past,  (tanque  le  quart  degree  soit  ^PJ^^  js.^b.) 
passe,  &c.)"     Here  by  (fee.  is  implyed  how  the  degrees  shall  be  sect.  20. 
accounted,  whereof  sufficient  hath  been  said  before. 


Sect,  270. 

T^ffU  same  law  is  between  the  heirs  of  the  donee  infranJcmarriage,  and 
the  other  parceners,  ^c.  if  the  donees  in  frankmarriage  die  before 
their  ancestor,  or  before  such  partition,  ^c.  as  to  put  in  hotchpot,  ^c. 

BY  these  three  &c.  in  this  Section  is  implied,  that  if  either  the 
donees  dye  before  the  ancestor,  or  survive  the  ancestor  and 
die  before  such  a  partition,  or  if  the  donees  and  all  the  parceners 
die  before  such  partition  upon  the  putting  into  hotchpot,  their 
issues  shall  have  the  same  benefit  to  put  the  lands  into  hotchpot  j 
for  that  benefit  is  heritable,  and  descendible  to  the  issues. 

Sect.  271. 

A  ND  note,  that  gifts  in  frankmarriage  were  by  the  common  law  before 
the  statute  of  Westm.  second,  and  have  been  alwaies  since  used  and 
continued,  ^c. 

"riONTINUED,  dec"    By  this  d'c.  is  to  be  understood,  that 
^  before  the  statute  it  was  a  fee  simple,  and  B®""  since 

ri78."l  the  statute  a  fee  taile.     So  as  it  is  true,  that  [5]  the 
L    b.     J  gifts  do  continue  (as  our  author  here  saith)  but  not  ^^^^^^^  H.  4.  11. 

the  estates ;  for  the  estate  is  changed,  as  at  large  ap-  '^^^^  {^g 
peareth  in  the  Chapter  of  Estates  in  Taile.     And  albeit  our  (Ant.  21.  a.) 
author  here  saith,  that  such  gifts  have  beene  alwais  since  used 
and  continued,  yet  now  they  be  almost  growne  out  of  use,  and 
serve  now  principally  for  moote  cases  and  questions  in  law  that 
thereupon  were  wont  to  rise. 


Sect  272. 


A  LSO,  such  putting  in  hotchpot,  S^c.  is,  where  the  other  lands  or  tene- 

ments  which  were  not  given  in  frankmarriage  descend  from  the  donors 

in  frankmarriage  only  ;  for  if  the  lands  shall  descend  to  the  daughters  by 

the  father  of  the  donor,  or  by  the  mother  of  the  donor,  or  by  the  brother  of 

the  donor  or  other  ancestor,  and  not  by  the  donor,  c^c.  there  it  is  othei- 

wise  ; 

t  ^«  to  (he  qnalijlcatlon  with  which  thii  maxim  should  be  understood,  see  ante  note  l./ol.  66.  o. 


178.  b.  179.  a.]  Of  Parceners.    L.  3.  C.  2.  Sect.  273. 

wise  ;for  in  such  case  she,  to  whom  such  gift  infranhnarriage  is  made, 
shall  have  her  part,  as  if  no  gift  infrankmarriage  had  been  made,  he- 
cause  that  she  was  not  advanced  hy  them,  ^c.  hut  hy  another,  ^c. 

THE  lands  given  in  frankmarriage  and  the  lands  in  fee  simple 
must  move  from  one  and  the  same  ancestor,  for  the  lands 
given  in  frankmarriage  are  in  respect  of  the  advancement  ac- 
counted in  law,  as  hath  been  said  (1),  as  if  the  same  had  de- 
scended from  the  same  ancestor  who  died  seised  of  the  fee  simple 
lands,  and  there  is  no  reason  to  barre  the  donee  of  her  full  part 
of  the  fee  simple  lands  that  descended  from  another  ancestor 
from  whom  she  had  no  such  advancement. 

"  Not  hy  the  donor,  &c."  Here  li-c.  implieth  no  more  but  that 
donor  that  made  the  gift  of  frankmarriage.  The  other  two  &c. 
in  this  Section  need  no  explanation. 


Sect.  273. 

A  LSO,  if  a  man  he  seised  of  30  acres  of  land  everie  acre  of  equall 
annuall  value,  and  have  issue  two  daughters  as  aforesaid,  andgiveth 
15  acres  hereof  to  the  hushand  with  his  daughter  in  frankmarriage,  and 
dies  seised  of  the  other  15  acres,  in  this  case  the  other  sister  shall  have  the 
15  acres  so  descended  to  her  alone,  and  the  hushand  and  wife  shall  not  in 
this  case  put  the  15  acres  given  to  them  in  frankmarriage  into  hotchpot; 
hecause  the  tenements  given  infrankmarriage  are  of  as  great  and  good 
yearly  value  as  the  other  lands  descended,  ^c.  For  if  the  lands  given  in 
frankmarriage  he  of  equall  or  of  more  yearely  value  than  the  remnant,  in 
vaine  and  to  no  purpose  shall  such  tenements  given  in  frankmarriage  he 
put  in  hotchpot,  ^c  for  that  she  cannot  have  any  of  the  other  lands  de- 
scended, S^c.  for  if  she  should  have  any  parcell  of  the  lands  descended, 
then  she  shall  have  more  in  yearly  value  than  her  sister,  §-c.  which  the  law 
will  not,  ^c.  And  as  it  is  spoken  in  the  cases  aforesaid  of  tivo  daughters 
or  of  two  parceners  in  the  same  manner  it  is  in  the  like  case,  where  tliere 
are  more  sisters  or  more  parceners,  according  as  the  case  and  matter  is,  ^c. 

BY  this  Section  and  the  &c.  herein  some  have  gathered,  that 
the  value  of  the  lands  shall  be  accounted  as  they 
were  at  the  time  of  the  gift  in  Jg@°"  frankmarriage.  ["179.  "| 
But  it  is  clear,  that  the  value  shall  be  accounted  as  it  l_  a.  J 
was  at  the  time  of  the  partition  ;  for  if  the  donor  pur- 
chase more  land  after  the  gift,  or  if  the  land  given  in  frank- 
marriage be  by  the  act  of  God  decayed  in  value,  or  if  the 
remnant  of  the  lands  in  fee  simple  be  improved  after  the  gift,  or 
(Ant.  32.  a.  ^  converso,  the  law  shall  adjudge  of  the  value  as  it  was  at  the  time 
171.  a.)  '  '  of  the  partition,  (unlesse  it  be  by  the  proper  act  or  default  of  the 
parties)  as  hath  been  said  before  in  the  former  Chapter.  And 
some  have  collected  upon  this  Section,  that  the  reversion  in  fee  of 
the  lands  given  in  frankmarriage  shall  only  descend  to  the  donee; 

for 


(1)  Ant.  177.  b. 


L.  3.  C. 2.  Sect. 274-76.  by  Custome.  [179.a.&b.-180.a. 

for  otherwise  the  other  sister  shall  have  more  benefit  than  the 
donee,  which  should  be  against  the  reason  of  our  author. 

"  In  vaine  and  to  no  purpose,  &c."    For  it  is  a  maxime  in  law,  ^®S"la.  Vid. 
lex  non  prcecipit  inutiUa,  quia  mutilis  labor  stultus.  ^^  j_  ^.^^j'  gg_  * 

P"^^*]  B@- Sect.  274.  (Ante  172.  b.) 

A  ND  it  is  to  he  understood,  that  lands  or  tenements  given  in  frank- 
marriage  shall  not  he  put  in  hotchpot,  hut  where  lands  descend  in 
fee  simple  ;  for  of  lands  descended  in  fee  taile  partition  shall  be  madey 
as  if  no  such  gift  in  frankmarriage  had  heen  made. 

T'OR  of  lands  intailed  the  donee  in  frankmarriage  shall  have  31  Ass.  pi.  14. 

J-    as  much  part  as  the  other  coparcener,  because  over  and 

besides    the  land  given   in   frankmarriage,   the    issue  in    taile 

claimeth  per  formam  doni,  and  both  of   the  parceners  must 

equally  inherit  by  force  of  the  gift,  et  voluntas  donatoris,  &c. 

observetur. 

Sect.  275. 

ALSO,  no  lands  shall  he  put  in  hotchpot  with  other  lands,  hut  lands 
given  in  frankmarriage  only  ;  for  if  a  woman  have  any  other  lands 
or  tenements  hy  any  other  gift  in  taile,  she  shall  never  put  such  lands  so 
given  in  hotchpot,  hut  she  shall  have  her  purparty  of  the  remnant 
descended,  cj-e.  (videlicet)  as  much  as  the  other  parcener  shall  have  of  the 
same  remnant. 

FOR  if  the  ancestor  infeoffeth  one  of  his  daughters  of  part  of  13  E.  2.  tit. 
his  land,  or  purchase  lands  to  him  and  her,  and  their  heires,  g^*^3  g'o  i,_ 
or  giveth  to  her  part  of  his  lands  in  taile  speciall  or  generall,  4  h.  .s.  49.  50. 
she  notwithstanding  this  shall  have  a  full  part  in  the  remnant 
of  the  lands  in  fee-simple  ;  for  the  benefit  of  putting,  &c.  into 
hotchpot  is  only  appropriated  to  a  gift  in  frankmarriage,  (quia 
maritagium  cadit  in  jmrtem)  which  shall  be  (as  is  aforesaid)  Bracton, 
accounted  as  parcell  of  her  advancement.  ^^^-  ^-  ^°^-  ^''- 

Sect  276. 


P!.«-] 


A  LSO,  another  partition  may  he  made  hetween  parceners,  which  varieth 
from  the  partitions  aforesaid.  As  if  there  he  three  parceners,  and 
the  youngest  will  have  partition,  and  the  other  tioo  ivill  not,  hut 
will  hold  in  parcenarie  that  tvhich  to  them  j|@^  helongeth,  with- 
out 'partition,  in  this  case,  if  one  jmrt  he  allotted  in  severalty  to 
the  youngest  sister  according  to  that  which  she  ought  to  have, 
then  the  others  may  hold  the  remnant  in  parcenarie,  and  occupy  in  com- 
mon tvithout  partition,  if  they  will,  and  such  partition  is  good  enough. 
And  if  afterwards  the  eldest  or  middle  parcener  ivill  make  partition 
hetween  them  of  that  which  they  hold,  they  may  tvell  do  this  when  they 

please. 


180.  a.]  Of  Joyntenants.      L.  3.  C.  3.  Sect.  277. 

please.  But  tvhere  partition  shall  be  made  hy  force  of  a  writ  of  par- 
titione  facienda,  there  it  is  otherwise  ;  for  there  it  behoveth,  that  every 
parcener  have  her  part  in  severalties  ^e. 

More  shall  be  said  of  parceners  in  the  Chapter  of  Joyntenants^  and 
also  in  the  Chapter  of  Tenants  in  Common. 

24  n.  3.  tit.  TTERE  it  is  to  be  observed,  that  this  partition  is  good  by  con- 
Paxtic.  19.  JJL  sent,  for  consensu  tollit  errorem  ;  but  if  it  be  by  the  king's 

writ,  then  everie  parcener  must  have  his  part.     And  here  you 
Kegula.  may  see  that  modus  et  conveniio  vincunt  legem. 

^'  In  severaltie,  &c."  Here  by  this  cfcc.  is  implied  another 
kind  of  severaltie  than  our  author  hath  mentioned:  and  that 
is,  that  the  one  parcener  shall  have  the  land  in  severaltie  from 
the  feast  of  Easter  untill  the  gule  of  August,  (that  is,  the  first 
of  August)  and  the  other  in  severaltie  from  thence  until  the 
feast  of  Easter  or  the  like,  et  sic  alternis  vicihus  to  them  and 
their  heires  in  peipetuum,  whereof  sufficient  hath  been  spoken 
before  (1). 


Chap.  3.  Of  Joyntenants.  Sect.  277. 

J OYNTENANTS  are^  as  if  a  man  be  seised  of  eertaine  lands  or 
tenements,  ^c  and  infeoffeth  two,  three,  four,  or  more,  to  have  and 
to  hold  to  them  for  terme  of  there  lives,  or  for  terme  of  another  s  life  by 
force  of  which  feoffment  or  lease  they  are  seised,  these  are  joyntenants. 
(Joyntenants  sent,  sicome  home  seisie  de  certaines  terres  ou  tenements, 
&c.  et  enfeofiFe  deux,  trois,  quater,  ou  plusors,  a  aver  et  tener  a  eux  pur 
term  de  lour  vies,  ou  pur  terme  d'auter  vie,  per  force  de  quel  feoffment 
ou  lease  ils  sont  seisies,  tiels  sont  joyntenants.) 

Bract,  lib.  4.       rj^HIS   agreeth  not  with  the  original  (2),  for  it  should  bee, 

fol.  262.  (.3).         JL     jountenants  sont.  sicome  home  seisie  de  eertaine  terres  ou 
Britton,  cap.  35.  -^  «^  '  ^  ^ 

&  fol.  112.  tenements, 


(1)  Ante  4.  a.  and  167.  a. 

(2)  Notwithstanding  lord  Coke's  censure  of  the  text  here,  it  agrees  with  the 
print  of  the  two  earliest  editions,  neither  the  edition  by  L.  and  M.  nor  the 
Kohan  one  having  any  of  the  words  added  by  lord  Coke,  except  ent  before 
enfeoffe.  But  I  think  that  this  addition  seems  requisite  to  the  sense  intended 
to  be  conveyed  by  Littleton,  as  well  for  the  reason  assigned  by  lord  Coke,  as 
because  otherwise  Littleton's  description  of  the  jointenancy  might  be  construed 
to  exclude  an  estate  in  fee,  which  certainly  could  not  be  his  intention.  Pro- 
bably therefore  the  omission  of  an  estate  in  fee  was  an  error  in  the  manuscript 
from  which  Littleton  was  first  printed.  The  addition  of  an  estate  in  fee  to 
Littleton's  description  of  jointenancy  was  first  introduced  by  Rastell  in  his 
edition  of  1534,  which  I  was  first  led  to  observe  by  a  note  I  was  favoured  with 
from  Mr.  Justice  Blackstone. — [Note  53.] 

The  edition  by  Machlinia  alone  of  the  existence  of  which  I  was  not  apprised 
when  I  wrote  the  note,  agrees  with  L.  and  M. 

(3)  I  take  this  reference  to  Bracton  to  be  erroneous.  But  in  fol.  28.  a.  of 
Bracton  there  is  a  chapter  which  connects  with  Littleton's  on  jointenantcy  : 
the  first  branch  of  it  being  de  donationihus  factis  pluribus  simul  sive  successive. 
See  also  Bract,  fo.  12.  b.  and  13.  a. 


L.  3.  C.  3.  Sect.  277.     Of  Joyntenants.     [180.  a.  180.  b. 

tenements,  &c.  et  ent  en/eoffe  deux,  on  trois,  ou  quafer,  ouphsors,   ^^^^^^^^  3^ca.4. 
a  aver  et  tener  a  exix  et  a  lour  heires,  ou  lessa  a  eux  pur  terme  de  ^^  47/(4)  " 
lour  vies,  ou  pur  terme  d'auter  vie,  per  force  de  quel  feoff ement  (2  Ro.  Abr.  86.) 
ou  lease,  &c.     The  error  may  easily  be  perceived  by  that  which 
is  in   print,   viz.  "  by  force   of  which   feoffment  or 

t  180.1  lease,"  &c.  eryo  there   must  B®""  be  feoffment  and 
b.     J  lease  spoken  of  before. 

There  be  also  joyntenants  by  other  conveyances 
than  Littleton  here  mentioneth,  as  by  fine,  recoverie,  bargains 
and  sale,  release,  confirmation,  &c.  So  there  be  divers  other  limi- 
tations than  Littleton  here  speaketh  of:  as  if  a  rent  charge  of  ten 
pounds  be  granted  to  A.  and  B.  to  have  and  to  hold  to  them  two, 
viz.  to  A.  untill  he  be  married,  and  to  B.  untill  he  be  advanced  to 
a  benefice,  they  be  joyntenants  in  the  meane  time,  notwithstand- 
ing the  severall  limitations  (1);  and  if  A.  die  before  marriage, 
the  rent  shall  survive  ;  but  if  A.  had  married,  the  rent  should 
have  ceased  for  a  raoitie,  et  sic  h  converso  on  the  other  side. 

Littleton  having  spoken  of  one  kinde  of  tenants  pro  indiviso, 
viz.  of  parceners,  commeth  now  to  another,  viz.  joyntenants:  and  7  E.  4.  29. 
firstof  joyntenants  of  freehold.  If  an  alien  and  a  subject  purchase  ^l^'hl^'         ' 
lands  in  fee,  they  are  joyntenants,  and  the  survivorship  shall  hold  ^^ 
place  (2),  et  nullum  tempus  occurrit  regi,  upon  an  office  found. 

"Joyntenants."  So  called,  because  the  lands  or  tenements,  &c. 
are  conveyed  tothem  joyntly,  conyMftc^m/eo/fa^i",  &c.  or  qui  con 

junctim 

(4)  It  should  be  cap.  48.  to  which,  as  a  corresponding  part  of  an  almost 
cotemporary  writer,  add  Bract,  fol.  428.  a. 

(1)  See  ant.  169.  b.  post.  183.  b.  Hob.  171.  and  Sheppard's  Common 
Assurances,  389.  In  the  two  latter  books,  especially  in  Hobart,  there  is  a 
variety  of  curious  matter  expounding  the  nature  and  use  of  a  scilicet,  and  how 
far  it  may  qualify  the  premises  or  habejidum  in  a  conveyance.  See  also  1  P. 
Wras.  18.  and  the  case  of  a  bond  to  two  with  a  scilicet  severing  the  money 
between  the  n  in  Dy.  350.  Lord  Hobart  seems  to  consider  the  scilicet  as  a  sort 
of  ancillary  clause,  which  may  explain,  but  cannot  operate  in  absolute  contra- 
diction of  the  premises  or  habendum.  In  a  Coke  upon  Littleton  I  have,  the 
learned  annotator  considers  the  scilicet  as  less  potent  than  the  habendum,  ob- 
serving upon  the  case  here  stated  by  lord  Coke,  that  though  the  scilicet  cannot 
sever  the  joint  estate  given  in  the  premises  and  the  habendum,  yet  that  the 
habendum  might  so  control  the  j^remises.  He  therefore  holds,  that  if  the  grant 
of  ten  pounds  had  been  to  A.  and  B.  hahendum  to  A.  till  he  be  married,  and 
to  B.  till  he  be  advanced  to  a  benefice,  there  they  would  be  tenants  in  common. 
This  nice  distinction  between  the  habendum  and  the  scilicet  in  point  of  efiect  I 
leave  to  the  consideration  of  the  learned  reader. — [Note  54.] 

(2)  See  post.  186.  a. — Lord  Coke  in  his  Reports  qualifies  this  by  adding 
till  office  found  under  the  great  seal.  5  Co.  52.  b.  But  if  the  natural-bornsub- 
ject  survives  the  alien,  and  then  the  king's  title  is  found  by  office,  shall  it  by- 
relation  to  the  creation  of  the  jointenancy  defeat  the  subject's  title  by  survi- 
vorship ?  The  words  of  lord  Coke  both  here  and  in  the  fifth  Report  are  am- 
biguous. His  first  words  here  favour  the  surviving  jointenant.  But  his  sub- 
sequent introduction  of  the  rule  of  mdlum  tempus  occurrit  regi,  with  the  quali- 
fication in  the  fifth  Report,  tends  to  a  different  conclusion.  Though  too  lord 
Coke  takes  notice  of  a  joint  purchase  by  an  alien  and  a  subject,  yet  there  is 
not  enough  to  solve  the  difficulty.  See  post.  288.  a.  See  as  to  this  point  of 
relation  in  offices  finding  the  king's  title,  W.  Jo.  78.  and  Nichols's  case,  Plowd. 
481.— [Note  55.] 


180.  b.]  Of  Joyntenants.      L.  3.  C.  3.  Sect.  278. 

Fleta,  lib.  6.  cap.  yujic^im  tenent,   and   are    distinguished    from  sole   or   seTerall 
47.  Bract,  lib.  5.  tgn^nts   from  parceners,  and  from  tenants  in  common,  &c.  and 
(Noy"^l3.*'  Ant.    anciently  they  were  called  jmrticipes,  et  non  ha'redes.    And  these 
164.    Cro.  Jam.  joyntenants  must  joyntly  implead  and  joyntly  be  impleaded  by 
83.  166.    Post,    others  (3),  which  propertie  is  common  between  them  and  co- 
Sect.  311.)  parceners;  but  joyntenants  have  a  sole  quality  of  survivorship, 
which  coparceners  have  not.     Littleton,  having  now  spoken  of 
parceners  and  of  joyntenants  of  right,  doth  next  speake  of  joyn- 
tenants by  wrong. 

Sect.  278. 

• 

A  LSO,  if  two  or  three,  §^c.  disseise  another  of  ant/  lands  or  tenements 

to  their  own  use,  then  the  disseisors  are  joyntenants.    But  if  they 

disseise  another  to  the  use  of  one  of  them,  then  they  are  not  joyntenants  ; 

hut  he  to  whose  use  the  disseisin  is  made  is  sole  tenant,  and  the  others  have 

nothing  in  the  tenancy,  hut  are  called  coadjutors  to  the  disseisin,  ^c. 

[  T  is  to  be  observed,  that  some  disseisors  be  tenants  of  the 
L  land,  and  some  be  no  tenants  of  the  lands ;  and  of  both  these 
kinds  Littleton  here  speaketh. 

50  jj  3  2.  "  c&c."     In  the  first  &c.  nothing  is  implied  but  four  or  five,  or 

17  Ass."  14.  more.     But  in  the  latter  &c.  many  things  be  to  be  understood. 

14  Ass.  12.  ^g  (j£  disseisors  that  be  no  tenants,  some  are  coadjutors,  whereof 
lQ^E.'i'47  Littleton  here  speaketh,  some  counsellors,  commanders,  &c. 
10  Ass.'22.'  when  the  disseisin  is  not  to  be  done  to  any  of  their  uses.  Also 
23  H.  8.  tit.  if  ^  disseise  one  to  the  use  of  B.  who  knoweth  not  of  it,  and 
28 Ts'^.'li.^^'  ^'  assent  to  it,  in  this  case  till  the  agreement  A.  was  tenant  of 
27  Ass!  30."  the  land,  and  after  agreement  £.  is  tenant  of  the  land,  but  both 
12  E.  4.  9.  of  them  be  disseisors  :  for  omnis  ratiliahitio  retrotrahitur  et 
Is'kt  \  ^'  mandato  equipatarur  (4).  And  it  is  worthie  of  the  observation, 
21  H.  7.  35.  and  implied  also  in  the  latter  &c.  that  seeing  coadjutors,  coun- 
29  Ass.  50.  sellers,  commanders,  &c.  are  all  disseisors,  that  albeit  the  disseisor 
35  h'  6  6i'  yi^\<i^  is  tenant  dieth,  yet  the  assise  lieth  against  the  coadjutor, 
21  E.'  4.'  46'.  counsellor,  commander,  &c.   and  the  tenant  of  the  land  (5), 

15  E.  4. 15.  though  he  be  no  disseisor  (6). 
F.  N.  B.  179.  G,  ^  ^ 

(Mo.  53.     Post.  374.  a.    Ant.  10.  a.     1  Ro.  Abr.  660.     Post.  188.  a.) 
(Post.  245.  a.  258.  a.)     (1  Ro.  Abr.  663.) 

The 


I 


(3)  See  the  statute  de  conjunctim  feoffatis,  34  E.  1.  lord  Coke's  notice  of  it 
in  2  Inst.  527,  and  Theloall's  Dig.  Orig.  Br.  in  the  Chapter  on  Jointenants  in 
b.  2.  fol.  456. 

(4)  But  infants  and  femes  covert  are  exceptions  to  this  rule ;  for  command- 
ment before  or  agreement  after  is  not  sufficient  to  make  them  disseisors,  but  it 
must  be  by  their  actual  entry,  or  their  own  proper  act.  Post.  857.  b.  F.  N.  B. 
179.  a.  3  H.  4.  17.  a.  Also  in  the  case  of  persons  of  full  ago,  if  a  disseisin 
to  the  use  of  another  be  accompanied  with  a  forcible  entry,  his  subsequent 
agreement,  though  it  makes  him  a  disseisor,  shall  not  charge  him  with  the 
force  on  the  statute  of  4  H.  4.  actual  entry  being  necessary  for  that  purpose. 
Ant.  16.  a.  &  b.— [Note  56.] 

(5)  That  is,  he  that  is  seised  of  the  freehold  by  title  from  the  disseisor,  as 
by  feoffment,  lease,  or  descent  from  him. 

(6)  See  ant.  154.  b. 


L.  3.  C.  3.  Sect.  279.  Of  Joyntenants.      [180.  b.  181.  a. 

[a]  The  demandant  and  others  in  a  praecipe  did  disseise  the  fa]  50  E.  3.  2. 
tenant  to  the  use  of  the  others,  and  the  writ  did  not  abate;  for  (Cro.  Cha.  303. 
the  demandant  was  a  disseisor,  but  gained  no   tenancy  in  the  L9 '*"  p'"":  ^^^' 
land,  for  that  he  was  but  a  coadjutor.  323!  a.) 

A  man  disseiseth  tenant  for  life  to  the  use  of  him  in  the  re- 
version, and  after  he  in  the  reversion  agreeth  to  the  disseisin,  it 
is  said,  that  he  in  the  reversion  is  a  disseisor  in  fee,  for  by  the 
disseisin  made  by  the  stranger,  the  reversion  was  di- 

[181. 1   vested (7),  which  (say  they)  cannot  be  B@° revested 
a.    J   by  the  agreement  of  him  in  the  reversion,  for  that  it 
maketh  him  a  wrong  doer,  and  therefore  no  relation 
of  an  estate  by  wrong  can  help  him(l). 

*'  Coacljutor."     Coadjutor  est  qui  auxiNator  alteri,  and  is  de- 
rived d  coadjuvando.     Anglic^  a  fellow  helper. 


Sect.  279. 

AND  note  that  disseisin  is  properly,  where  a  man  entreth  into  any 
lands  or  tenements  where  his  entry  is  not  congeahUy  and  ousteth 
him  which  hath  the  freehold,  ^c. 

THIS  description  of  a  disseisin  and  the  &c.  in  this  place  is 
understood  only  of  such  lands  and  tenements  whereunto  an 
entry  may  be  made,  and  not  of  rents,  commons,  &c.  (2)  whereof 
sufficient  hath  been  said  before (3)  in  the  Chapter  of  Rents;  and 

so  in  effect  Littleton  described  it  before  the  edition  of  his  book.  3  e.  4.  2. 

And  note  here,  that  every  entry  is  no  disseisin,  unlesse  there  be  34  Ass.  11, 12. 

an  ouster  also  of  the  freehold.    And  therefore  Littleton  doth  not  ^^  ^^^-  j^" 

set  down  an  entrie  only  but  an  ouster  also,  as  an  entry  and  a  24  E.  3.  31. 

claimer,  or  taking  of  profits,  &c.  PL  Com.  89. 

Now  as  there  be  joyntenants  by  disseisin,  so  are  there  joyn-  ?'^'"*°  »  ^^  ^^,°J' ^ 

tenants  by  abatement,  intrusion,  and  usurpation,  all  which  arc  11  ass.  25. 

included  in  the  latter  &c.  12  E.  3.  tit. 

Ass.  88. 
45  Ass.  7.   9  Ass.  19.    39  Ass.  1.    18  E.  2.    Ass.  374. 

Sect. 


(7)  Why  disseisin  of  tenant  for  life  makes  a  fee  in  the  disseisor  is  thus  ac- 
counted for  by  lord  Hobart  with  his  usual  peculiarity  and  energy  of  phrase. 
"  A  grant  to  J.  S.  and  his  heirs  during  the  life  of ./.  />.  is  no  fee,  but  a  special 
"occupancy,  as  is  resolved  in  Chudleigh's  case.  But  a  disseisin  of  an  estate 
"for  life  by  necessity  in  law  makes  a  quasi  fee;  because  wrong  is  unlimited, 
"and  ravens  all  that  can  be  gotten,  and  is  not  governed  by  terms  of  the  estates, 
"because  it  is  not  contained  within  rules."     Hob.  323. — [Note  57.] 

(1)  Ace.  277.  b.  To  what  lord  Coke  has  written  on  disseisin  hy  procvre- 
mentj  a  learned  annotator  in  a  Coke  upon  Littleton  I  have,  adds  the  following 
references  relative  to  procurers  0/ tresjmss,  namely  11  II.  7.  G.  a.  12  H.  7.  14. 
a.  21  H.  7.  22.  a.  13  H.  7.  13.  a.— [Note  58.] 

(2)  In  respect  to  disseisin  of  rents,  read  post.  30G.  b.  323.  a.  and  b. 

(3)  Ant.  Sect.  233.  and  the  comment  thereon. 


181.  a.  181.  b.]    Of  Joyntenants.     L.  3.  C.  3.  Sect.  280. 

Sect.  280. 

A  ND  it  is  to  be  understood^  that  the  nature  of  joyntenancy  is,  that  he 
which  surviveth  shall  have  only  the  entire  tenancie,  according  to 
such  estate  as  he  hath,  if  the  joynture  be  continued,  ^c.  As  if  three 
joyntenants  bee  in  fee  simple,  and  the  one  hath  issue  and  dieth,  yet  they 
which  survive  shall  have  the  whole  tenements,  and  the  issue  shall  have 
nothing.  And  if  the  second  joyntenant  hath  issue  and  dye,  yet  the 
third  which  surviveth  shall  have  the  lohole  tenements  to  him  and  to  his 
heires  for  ever.  But  otherwise  it  is  of  parceners  ;  for  if  three  parcen  ers 
be,  and  before  any  partition  made  the  one  hath  issue  and  dyeth,  that 
which  to  him  belongeth  shall  descend  to  his  issue.  And  if  such  parcener 
die  without  issue,  that  which  belongs  to  her  shall  descend  to  her  co-heires, 
so  as  they  shall  have  this  by  descent,  and  not  by  survivor,  as  joyntenants 
shall  have,  ^c. 

"  TF  the  jointure  he  continued,  &c." 

Here  by  this  (&-c.  many  points  of  learning  are  to  be  observed. 
As  that  it  is  proper  to  joyntenants  only  to  have  lands  by  sur- 
vivor; for  no  survivor  of  other  tenants  pro  indiviso  shall  have 
the  whole  by  survivor,  but  only  joyntenants:  and  this  is  called 
Bracton,  lib.  4.    in  law^MS  accrcscendi.      Omnes  feoff ati  sunt  siniul  hahendi  et 
fol.  262.  b.  tenendi,  nee  totum  nee  partem  sejiaratam  nee  per  se,  sed  ut  qui- 

^"**°°'  *"^?'  ^^'  Khet  eorum  totum  haheat  cum  aliis  in  communi;  et  cum  unus 
ca.  4.'&  ca.  10.    moriatur,  non  descend  it  aliqua  pars  hseredi  morientis,  nee  sepa- 
49  E  3.  fol.  5,  6.    rata  nee  in  communi  ante  mortem  omnium,  sed  pars  ilia  com- 
munis per  jus  accrescendi  accrescit  superstitibus  de  persona  ad 
personam  usque  ad  ultimum  superstitem.     But  although  sur- 
vivorship be  proper  to  joyntenants,  yet  it  is  not  proper 
quarto  modo  (that  is)  omni,  soli  et  semper;  for  there  ri91.~j 
may  be  B^^joyntenants,  though  there  be  not  equall  L     i'^-     J 
benefit  of  survivor  on  both  sides.    As  if  a  man  letteth 
lands  to  A.  and  B.  during  the  life  of  A.  if  B.  dyeth,  A.  shall 
have  all  by  the  survivor,  but  if  A.  dyeth,  B.  shall  have  nothing  (1). 
(9  Co.  75.  b.)  Two  or  more  may  have  a  trust  or  an  authoritie  committed  to 

them  jointly,  and  yet  it  shall  not  survive.     But  herein  are  divers 
diversities  to  be  observed.     First,  there  is  a  diversitie  between 
(1  Sid.  6.)  a  naked  trust  or  an  authoritie,  and  a  trust  or  authoritie  joyned  to 

an  estate  or  interest  (2).  Secondly,  there  is  a  diversitie  between 
authorities  created  by  the  partie  for  private  causes,  and  authoritie 
[6]  39  Ass.  p.  17.  created  by  law  for  execution  of  justice.  As  for  example,  [6]  if 
30  H.  8.  tit.  a  man  devise  that  his  two  executors  shall  sell  his  land,  if  one  of 
T>7eT%  El  190.  ^^^^  ^J^i  t^^  survivor  shall  not  sell  it  (2);  but  if  he  had  devised 
49  E.'  3.  16.  2  Eliz.  Dyer,  177.  23  Eliz.  Dyer,  371.  4  Eliz.  Dyer,  210.  (Mo.  61.  341.) 
10  H.  4.  2,  &  3.  14  H.  4.  34.  39  H.  6.  42.  31  Ass.  20.  33  H.  8.  Joynt.  Br.  62. 
30  H.  8.  Condition,  Br.  190. 

nis 

(1)  See  further  as  to  benefit  of  survivorship  on  one  side  only,  post.  193.  a. 
239.  b.  &  Dy.  10.  b. 

(2)  See  Ant.  112.  b.  113.  a.  post.  297.  a. 

(8)  In  a  former  part  I  have  ventured  to  make  a  doubt  of  this,  and  to  con- 
tend that  the  power  to  sell  being  given  to  the  executors  by  reason  of  an  office 
and  interest,  which  do  go  to  the  survivor,  may  well  survive  with  them.  See 
ant.  note  2,  to  113.  a. — [Note  59.] 


L.  3.  C.  3.  Sect.  281.   Of  Joyntenants.   [181.  b.  182.  a. 

his  lands  to  his  executors  to  be  sold,  there  the  survivor  shall  sell 
it  J  which  diversitie  is  iraplyed  by  our  author,  for  he  saith,  that 
he  that  surviveth  shall  have  the  entire  tenancie. 

If  a  man  make  a  letter  of  atturney  to  two,  to  do  any  act,  if 
one  of  them  dye,  the  survivor  shall  not  do  it ;  but  if  a  venire 
facias  be  awarded  to  four  coroners  to  impanncU  and  returne  a 
jury,  and  one  of  them  dye,  yet  the  other  shall  execute  and  re- 
turne the  same. 

If  a  charter  of  feoffment  [c]  be  made,  and  a  letter  of  atturney  [c]  38  II.  8.  8. 
to  four  or  three  joyntly  or  severally  to  deliver  seisin,  two  of  Dyer,  62. 
them  cannot  make  liverie ;  because  it  is  neither  by  them  four  or  ,.  ^J  91  °  ' 
three  joyntly,  nor  any  of  them  severally  ;  but  if  the  sherife  upon  Velv.  25,  26. 
a  capias  directed  to  him  make  a  warrant  to  four  or  three  joyntly  Cro.  Eliz.  913, 
or  severally  to  arrest  the  defendant,  two  of  them  may  arrest  him,  r^/lpjjggij 
because  it  is  for  the  execution  of  justice  [</],  which  is  pro  hono  45  eUz.  in  the 
publico,  and  therefore  shall  be  more  favourably  expounded,  than  king's  bench 
when  it  is  only  for  private ;  and  so  hath  it  been  adjudged  (4).  ^^^d^^jiXbes"" 
Jura  puhlica  ex  privato promiscue  decidi  nan  dthent.  (Hutt.  127.) 


"  And  dieth."  Note,  there  is  a  naturall  death  and  a  civil  death, 
and  Littleton^ s  case  is  to  be  intended  of  both ;  and  therefore  [e]  [c]  21  R.  2. 
if  two  joyntenants  be,  and  one  of  them  entreth  into  religion,  the  Juflgement,  263. 
survivor  shall  have  the  whole  (5).  ^  "  ' 


Sect.  281. 

J  iVZ)  as  the  survivour  Jiolds place  hetiveene  joyntenants  (6)  in  the  same 

manner  it  holdeth  place  between  them  which  have  joynt  estate  or 

possession  with  another  of  a  chattell,  reall  or  personall.     As  if  a  lease 

of  lands  or  tenements  be  made  to  many  for  terme  of  years,  he,  which 

survives  of  the  lessees,  shall  have  the  tenements  to  him  only 

t  189.1   during  the   terme  by  force  of  'S^^  the  same  lease  {1).     And 
2-    \  if  a  horse,  or  any  other  chattell  personall  be  given  to  many^ 
he  which  surviveth  shall  have  the  horse  only- 


HEREBY  it  is  manifest,  that  survivor  holdeth  place  regularly  (Cro.  Eliz.  33. 
as  well  between  joyntenants  of  goods  and  chattels  in  posses-  2  Ro.  Abr.  86, 
sion  or  in  right,  as  joy  tenants  of  inheritance  or  freehold. 


"  Chattell,"  or  Gatell,  whereof  corameth  the  word  used  in  law 
[/]  Ca<a?(fa,  and  is,  as  7y('«^eto«,  here  teacheth,  two-fold,  viz.  reall  [/]  Regist. 
and  personall,  and  putteth  examples  of  both.  i['°'t'i'b^  2"^^' 

39  H.  6.  35.     Staunford  Pr.  45. 

Sect. 


(4)  See  ace.  as  to  warrant  of  the  peace  to  two,  Lambard's  Justice,  ed.  1602, 
p.  84. 

(5)  See  ant.  note  7,  of  fol.  3.  b.  and  note  1,  of  fol.  132.  b.     Add  Ley's 
case,  2  Ro.  Abr.  43. 

(6)  &c.  in  L.  and  M.  andRoh. 

(1)  And  this  benefit  of  survivorship  takes  place  on  a  lease  for  years  to  two, 
though  one  of  the  lessees  dies  before  entry.     Ant.  4G.  b. — [Note  60.] 


N^ 


182.  a.J     Of  Joyntenants.      L.  3.  C.  3.  Sect.  282,  283. 

Sect.  282. 

TNtJie  same  manner  it  is  of  debts  and  duties,  Sj-c.for  if  an  obligation 
be  made  to  many  for  one  debt,  he  which  surviveth  shall  have  the  whole 
debt  or  dutie.     And  so  it  is  of  other  covenants  and  contracts,  ^c  (3). 

OW  he   speaketh   of  debts,    duties,  covenants,   contracts, 
ct'c.  (2). 

(1  Ro.  Abr.  6.)  "  Debts  and  duties,  &c."  Here  by  force  of  this  dr.  an  excep- 
F.  N.B.  117.  E.  tion  is  to  be  made  of  two  joynt  merchants;  for  the  wares,  mer- 
38  E.  3.  7.  chandizes,  debts  or  duties,  that  they  have  as  joynt  merchants  or 

parteners,  shall  not  survive,  but  shall  go  to  the  executors  of  him 
(Ant.  172.  a.  ^j^j^^  deceaseth  ;  and  this  is  per  legem  mercatoriam,  which  (as 
1  Ro.'^Abr.l!!^'  liath  beene  said)  is  part  of  the  lawes  of  this  realm,  for  the  ad- 
Cro.  Cha.  301.  vanccment  and  continuance  of  commerce  and  trade,  which  is  pro 
1  Sid.  236.  bono  publico  ;  for  the  rule  is,  that/j/s  accrescendi  inter  mercatores 

''  '  ■'  pro  benefcio  commercii  locum  von  habet  (4). 

[See  1  Ch.  R.  ^j^j  iq  the  latter  dr.  in  this  Section  the  like  exception  must 

67.     1  Vern.  i  ^ 

217.    3  Wms.      t)e  made. 

158.     2  Atk.  5i.     See  also  1  Vern.  33.  &  Nott.  MSS.  1146.     See  further  3  Atk.  734. 
IVem.  361.    2  Vern.  556.     1  Br.  Ch.  R.  118.     1  Atk.  467.    4  Bro.  P.  C.  224.] 

Sect.  283. 

ALSO,  there  may  be  some  joyntenants,  which  may  have  a  joynt  estate^ 
and  be  jointenants  for  terme  of  their  lives,  and  yet  have  severall  in- 
heritances. As  if  lands  be  given  to  two  men  and  to  the  heires  of  their 
two  bodies  begotten,  in  this  case  the  donees  have  a  joint  estate  for  term  of 
their  tivo  lives,  and  yet  they  have  severall  inheritances  ;  for  if  one  of  the 
donees  hath  issue  and  dye,  the  other  ivhich  surviveth  shall  have  the  lohole 
by  the  survivor  for  terme  of  his  life,  and  if  he  which  surviveth  hath  also 
issue  and  die,  then  the  issue  of  the  one  shall  have  the  one  moitie,  and  the 
issue  of  the  other  shall  have  the  other  moity  of  the  land,  and  they  shall 
hold  the  land  between  them  in  common,  and  they  are  not  joyntenants, 
hut  are  tenants  in  common.  And  the  cause,  ivhy  such  donees  in  such 
case  have  a  joynt  estate  for  terme  of  their  lives,  is,  for  that  at  the  beginning 
the  lands  were  given  to  them  tivo,  which  ivords  ivithout  more  saying  make 
a  joynt  estate  to  them  for  terme  of  their  lives.  For  if  a  man  will  let  land 
to  another  by  deed  or  ivithout  deed,  not  making  mention  what  estate  he 
shall  have,  and  of  this  make  liverie  of  seisin,  in  this  case  the  lessee  hath 
an  estate  for  terme  of  his  life  ;  and  so  in  as  much  as  the  lands  ivere  given 
to  them,  they  have  a  joint  estate  for  term  of  their  lives.  And  the  reason 
why  they  shall  have  several  inheritances  is  this,  inasmuch  as  they  cannot 
by  any  possibility  have  an  heir  between  them  ingendred,  as  a  man  and 
woman  may  have,  ^c.  the  law  ivill  that  their  estate  and  inheritance  he 

such 

(3)  No.  &c.  in  L.  &  M.  nor  Rob. 

(2)  See  further,  as  to  things  of  which  there  shall  be  a  survivorship,  and 
where  express  words  are  necessary  to  give  that  benefit,  11  Co.  3.  b.  2  Ro.  Ab:. 
86.  B.  2.  2  P.  Wms.  672.  and  tit.  Survivor,  in  Yin.  Abr.  and  tit.  Jontei  an's, 
B.  1.  &  D.  ibid. 

(4)  See  more  fully  as  to  this,  2  Brownl.  99.     See  also  ace.  Noy,  55. 

(5)  These  additional  references  are  retained,  though  they  scarcely  deserve  it; 
for  they  only  relate  to  different  instances  of  the  lex  mercatoria,  and  do  not  touch 
the  particular  rule  against  the^Ms  accrescendi. 


L.  3.  C.  3.  Sect.  283.    Of  Joyntenants.     [182.  a.  182.  b. 

such  as  is  reasonable,  according  to  the  forme  and  effect  of  the  words  of 
the  gift.,  and  this  is  to  the  heires  which  the  one  shall  heget  of  his  body  by 
any  of  his  wives  (1)  f  [and  to  the  heirs  ivhich  the  other  shall  beget  of  his 
body  by  any  of  his  wifes,']  cj-c.  so  as  it  behoveth  by  necessitie  of  reason, 
that  they  have  several  inheritances.  And  in  this  case  if  the  issue  of  one 
of  the  donees  after  the  death  of  the  donees  dye,  so  that  he  hath  no  issue 
alive  of  his  body  begotten,  then  the  donor  or  his  heir  may  enter  into  the 
moity  as  in  his  reversion,  <|-(?.  (Et  en  tiel  cas  si  Tissue  d'un  des  donees 
apres  la  mort  des  donees  devie,  issint  que  il  n'ad  ascun  issue  en  vie  de 
son  corps  engendre  donque  le  donor  ou  son  heire  poet  enter  en  la  moity 
come  en  son  reversion,  &c.)  although  the  other  donee  hath  issue  alive, 
^c.  And  the  reason  is,  forasmuch  as  the  inheritances  be  several,  S^c.  the 
reversion  of  them  in  law  is  severall,  ^c.  and  the  survivor  of  the  other 
shall  hold  no  place  to  have  the  whole. 

"  rpEEY  have  a  joint  estate  for  term  of  their  two  lives,  &c."  Vide^Seet.  296. 
^  Note,  albeit  they  have  severall  inheritances  in  taile,  and  a  ^^°^"  ^^^-  ^-^ 
particular  estate  for  their  lives,  yet  the  inheritance  doth  not  ex- 
ecute and  so  break  the  joyntenancy,  but  they  are  joyntenants  for 
life,  and  tenants  in  common  of  the  inheritance  in  tayle. 

"As  a  man  and  woman  may  have,  &c."     Here  a  diversity  is  VidoWestcotte'a 
iraplyed,  when  the  estate  of  inheritance  is  limited  by  gj^°'         °'      ' 

[182.~|  one  conveyance,  J^^'as  in  this  case  it  is,  there  are  no  (i  sid.  83.) 
b.     J  severall  estates  to  drown  one  in  another.     But  when 
the  estates  are  divided  in  severall  conveiances,  their 
particular  estates  are  distinct  and  divided,  and  consequently  the 
one  drowns  the  other.     As  if  a  lease  be  made  to  two  men  for 
terme  of  their  lives,  and  after  the  lessor  granteth  the  reversion  to 
them  two,  and  to  the  heires  of  their  two  bodies,  the  joynture  is 
severed,  and  they  are  tenants  in  common  in  possession.     And  it 
is  further  implied,  that  in  this  case  of  Littleton  there  is  no  di-  vid.  12  E.  i. 
vision  between  the  estate  for  lives,  and  the  severall  inheritances  ;  2.  b. 
for  in  this  case  they  cannot  convey  away  the  inheritances  after 
their  decease  (1),  for  it  is  divided  only  in  supposition  and  con- 
sideration of  law,  and  to  some  purposes  the  inheritance  is  said 
to  be  executed,  as  shall  be  said  hereafter.  i^^'^^-  ^^^-^ 

If  a  man  make  a  lease  for  [/]  life,  and  after  granteth  the  re-  [/]  39  H.  6. 
version  to  the  tenant  for  life  and  to  a  stranger  and  to  their  2- b. 

...  .  /.    1  •  1     i.  J.1  •         (*  Lieon.  .57. 

heires,  they  are  not  joyntenants  ot  the  reversion,  but  the  reversion  p^^^j  299.  b. 
is  by  act  of  law  executed  for  the  one  moitie  in  the  tenant  for  Cro.  Jam.  260, 
life,  and  for  the  other  moity  he  holdeth  it  still  for  life,  the  re-  261.) 
version  of  that  moity  to  the  grantee.  (*) 

And  so  it  is,  if  a  man  maketh  a  lease  [//]  to  two  for  their  lives,  [g]  Wescot's 

t    This  is  note  1  0/  183.  a.  in  the  Uth  and  Uth  editions.  and   t-'ise,  ubi  supra. 

(1)  t  In  L.  &  M.  and  Roh.  the  following  words  here  placed  between  brackets 
are  omitted. 

(1)  See  post.  184.  b. 

(*)  A  lessee  for  years  accepts  an  estate  to  him  and  another  as  joint  tenants 
for  life ;  whether  lease  merged  wholly,  or  for  a  moiety  merged,  and  for  a  moiety 
was  suspended,  see  Cro.  El.  532.  This  book  seems  rather  an  authority  for  a 
total  merger  and  extinction,  and,  as  I  incline  to  think,  rightly  in  principle; 
joint  tenants  being  seised  j)cr  my  et  jn'r  tout,  and  each  therefore  having  entire 
possession  of  the  whole,  as  well  as  of  every  part.  See  however  Lev.  127.  Sec 
further,  3  Keb.  431.  and  what  lord  Coke  writes  here,  according  to  which  it  is 
otherwise  where  reversion  in  fee  is  conveyed  to  tenant  for  life  and  a  stranger. 
On  what  reason  is  it,  that  the  merger  should  be  of  the  whole  in  the  one  case, 
but  only  of  the  moiety  in  the  other  ?     See  also  2  Saund.  380. 


182.  b.  183.  a.  183.  b. J  Of  Joyntenants.  L.3.C.3.S.283. 

and  after  granteth  the  reversion  to  one  of  them  in  fee,  the  joyn- 
ture  is  severed,  and  the  reversion  is  executed  for  the  one  moitie, 
and  for  the  other  moitie  there  is  tenant  for  life  the  reversion  to 
the  grantee  (2). 
Ib'dem  7  H  6.  I^  lessee  for  life  granteth  his  estate  to  him  in  the  reversion, 
'  and  to  a  stranger,  the  joynture  is  severed  and  the  reversion  ex- 

ecuted for  the  one  moitie  by  the  act  of  law  (3). 

B@°"If  a  man  maketh  a  lease  for  life  and  granteth  TISS."] 
the  reversion  to  two  in  fee,  the  lessee  granteth  his  L  ^-  J 
estate  to  one  of  them,  they  are  not  joyntenants  of  the 
reversion;  for  there  is  an  execution  of  the  estate  for  the  one 
moitie,  and  an  estate  for  life,  the  reversion  to  the  other  of  the 
other  moity  (2)  f- 

Here  Littleton  hath  well  resolved  a  doubt ;  for  of  ancient  time 
[7t]  17  E.  3. 15.  it  hath  been  said,  [A]  that  when  lands  have  been  given  to  two 
50' E^ 3^"  ^"  ^^*  ""'omen  and  to  the  heires  of  their  two  bodies  begotten  (which 
Statha'm.  tit.  case  our  author  putteth  in  the  next  Section)  that  the  husband 
Don.  60,  E.  3.  having  issue  should  be  tenant  by  the  courtesie  living  the  other 
Feoffments  •g^.^j.     ^^^  ^^^^  ^^  g^^^g  ij^^jj  ^\^q  inheritance  was  executed,  and 

'     ■  that  the  sisters  were  tenants  in  common  m  possession,  and  con- 

(Ant.  13.  a.)        sequently  the  husband  to  be  tenant  by  the  curtesie,  which  he 
•1  41  F  •>  could  not  be  if  the  women  had  a  joynt  estate  for  terme  of  their 

Taile,  13."'         lives ;  and  likewise  it  was  said  [i]  that  the  issue  of  the  one 
8  Ass'.  33.  should  recover  the  moytie  in  a  formedon  living  the  other  sister, 

24  E.  3.  29.  j3yt  verba  sunt  ha'c,  and  Littleton,^  grounding  himselfe  upon  good 
Co^bet's^ase.     authority  in  law,  hath  cleered  this  doubt. 

4  Mar^Dier  145  "  ^^^  making  mention  what  estate  he  shall  have."  Here  Little- 
See  before  in  the  ton  addeth  materially  (not  making  mention  of  what  estate);  for 
Chapter  of  Ten.  j-;^.-]  if  i^  tj^e  premisses  lands  be  letten,  or  a  rent  granted,  the  ge- 
SecUon?"f  ^^'^'  "^^^^  intendment  is,  that  an  estate  for  life  passeth ;  but  if  the 
(Ant.°30.'  a.  hahendum  limit  the  same  for  years  or  at  will,  the  habendum  doth 
2  Ro.  Abr.  90.)  qualifie  the  generall  intendment  of  the  premisses.  And  the  rea- 
Thro*  morion's"  ^°°  ^^  ^^^^  ^^'  ^^"^  *^**'  ^*  ^^  *  maxime  in  law,  that  every  man's  grant 
case!^"^""^  °°  ^  shall  be  taken  by  construction  of  law  most  forcible  against  him- 
(2  Co.  23.  55.  selfe.  Qucdihetconcessiofortissime  contra  donatorem  interpretan- 
2  r'"  Abr  66  )  ^^*  ^^* '  which  is  SO  to  be  understood,  that  no  wrong  be  thereby 
Regula.  ^'  done ;  for  it  is  another  maxime  in  law,  qiiod  legis  constructio  non 

(5  Co.  8.  a.         facit  injuriam.    And  therefore  if  tenant  for  life  maketh 
Plowd.  I6i.a.     ^  jgggg  generally,  this  shall  be  taken  by  B@"  construe-  ri83."l 
Ant.  42.  a.)         ^.^^  ^^  ^^^^  ^^  ^^^^^^  ^^^  j^.g  ^^^  jj^^  ^.j^^^^  ^^^^  ^^^  lease ;  L     t).    J 

for  if  it  should  be  a  lease  for  the  life  of  the  lessee,  it 
should  be  a  wrong  to  him  in  the  reversion.    And  so  it  is  if  tenant 
in  taile  make  a  lease  generally,  the  law  shall  contrive  this  to  be 
such  a  lease  as  he  may  lawfully  make,  and  that  is  for  terme  of 
his  owne  life :  for  if  it  should  be  for  the  life  of  the  lessee,  it  should 

be 

3  Sect.  35 The  first  case  stated  in  the  second  paragraph  of  183.  a.  is  mentioned  be/ore 

near  the  end  of  fol.  30.  a.  with  a  marginal  reference  to  fol.  183,  as  being  contra. 


(2)  Vid.  Hil.  35  Eliz.  B.  R.  rot.  No.  96.  Perkins  &  Pecke,  21.  Dy.  12.  41 
E.  3.  21  H.  6.  40.  40  Ass.  45  E.  3.  2.— Hil.  37  Eliz.  Dickson  v.  Marsh, 
B.  R.  rot.  No.  103.  Devise  to  eldest  son  and  another  for  life.  Held,  that  they 
are  jointenants  though  the  fee  descends;  hut  male.  Hal.  MSS.  See  as  to  the 
latter  case,  Cro.  Jam.  260. — [Note  61.] 

(3)  See  post.  192.  200.  b.  335.  a. 

(2)  t  But  it  is  otherwise  on  a.  siirrender  ;  for  that  enures  to  both  jointenants 
of  the  reversion.     Post.  192.  a.     See  further.  Perk.  sect.  80.— [Note  62.] 


L.  3.  C.  3.  Sect.  283.     Of  Joyntenants.  [183.  b. 

be  a  discontinuance,  and  consequently  the  state  whicli  should 
passe  by  construction  of  law  should  worke  a  wrong  (1). 

"  And  so  inasmuch  as  the  lands  were  given  to  them,  they  have 
a  joint  estate  for  term  of  their  lives."  This  is  plaine,  but  with  this 
exception,  unlesse  the  habendum  doth  otherwise  limit  the  same. 

And  therefore  if  a  lease  be  made  [Z]  to  two,  habendum  to  the  one  [i]  8  E.  3.  427. 

for  life,  the  remainder  to  the  other  for  life,  this  doth  alter  the  V^v,^.®"^^™' 

general  intendment  of  the  premises  (2),  and  so  hath  it  been  30  jj  g'  t^t' 

oftentimes  resolved.     And  so  it  is  if  a  lease  be  made  to  two,  Joynt.  Br.  5.3. 

hahend%(,m  the  one  moiety  to  the  one,  and  the  other  moitie  to  the  ^y^^^  fo-  361. 

other,  the  habendum  doth  make  them  tenants  in  common;  and  /Hob°rri 

so  one  part  of  the  deed  doth  explaine  the  other,  and  no  re-  Post.  190.  b. 

pugnancy   between    them,    et   semper   eocpressum  facit   cessare  2  Ro.  Abr.  65. 

taciturn  (S).  fieon.10,11.) 

"By  any  possibility."     Here  it  is  to  be  observed,  that  where  (2  ro.  Abr.  66. 
the  grant  is  impossible  to  take  eifect  according  to  the  letter,  5  Co.  19.  a. 
there  the  law  shall  make  such  a  construction  as  the  gift  by  pos-  ^'^^-  ^^^-^ 
sibilitie  may  take  effect,  which  is  worthy  of  observation.     Be- 
nignae  faciendae  sunt  interjiretationes  cartarum  propter  simplici- 
taiem  laicorum,  ut  res  magis  valeat  qiidm  pereat. 

"  So  as  it  behoveth  by  necessity  of  reason."  The  reason  of  the 
law  is  the  life  of  the  law;  for  though  a  man  can  tell  the  law,  yet 
if  he  know  not  the  reason  thereof,  he  shall  soone  forget  his  su- 
perficial knowledge.  But  when  he  findeth  the  right  reason  of 
the  law,  and  so  bringeth  it  to  his  natural  reason,  that  he  com- 
prehendeth  it  as  his  own,  this  will  not  only  serve  him  for  the 
understanding  of  that  particular  case,  but  of  many  others :  for 
cognitio  legis  est  copulata  et  complicata;  and  this  knowledge  will 
long  remaine  with  him.  All  which  is  plainly  implyed  by  the 
words  and  &c.  of  our  author  in  this  Section. 

"  And  in  this  case  if  the  issue  of  one  of  the  donees  after  the  death 
of  the  donees  dye,  &c. — £t  en  tiel  case  si  I' issue  d'un  des  donees 
apres  la  mort  des  donees  devie,  issint  que  il  n^ad  ascun  issue  en 
vie  de  son  corps  engendre,  donques  le  donor  ou  son  heire  poet 
enter  en  le  moitie."  This  is  mistaken  in  the  imprinting,  and 
varieth  from  the  originall,  (4)  which  is,  si  Vun  donee  ou  I' issue 
d'un  des  donees  apres  la  mort  des  donees  devie,  issint  que  il  n'ad 
ascun  issue,  &c.  For  it  is  evident  that  if  the  one  donee  him- 
selfe  dieth  without  issue,  the  inheritance  doth  revert  for  a 
moitie,  and  after  the  decease  of  the  other  donee,  the  donor  may 
enter  into  that  moitie;  and  whether  the  issue  of  the  one  donee 
dieth  without  issue  at  any  time,  either  in  the  life  of  the  other 
donee,  or  after  his  decease,  it  is  not  materiall,  for  whensoever 
no  issue  is  remaining  of  the  one  donee,  so  as  the  state  taile  is 
spent,  the  donor  may  after  the  decease  of  the  surviving  donee 
enter  into  that  moity  (5). 

"And 

(1)  Ace.  ant.  42.  a.  and  there  the  reason  is  more  fully  expressed. 

(2)  Ace.  Perk.  sect.  174. 

(3)  Ace.  Sect.  298.     See  also  2  Co.  55.  a.  &  b.  ant.  180.  b.  post.  189.  a. 
299.  b. 

(4)  But  lord  Coke's  correction  is  not  conformable  either  to  L.  and  M.  or  the 
Boh.  edition. 

(5)  See  Hob.  33. 


183.  b.  184.  a.]     Of  Joyntenants.     L.  3.  C.  3.  Sect.  284. 

"  And  the  reason  is,  forasmuch  as  the  inheritances,  &c."     Lit- 
tleton in  this  Chapter  hath  often  said,  and  the  reason  is,  which  is 
worthie  of  observation,  for  then  we  are  truely  said  to  know  any 
Arist.  1.  Meta-    thing  when  we  know  the  true  cause  thereof.     Tunc  unumquodque 
phys.  scire  dicimur,  ciim  primam  causam  scire putamus.      Scire  autem 

proprie  est  rem  ratione  et  per  causam  cognoscere. 

Virg.  2  Georg.  Felix,  qui  potuit  rerum  cognoscere  causas. 

And  therefore  all  students  of  law  are  to  apply  their  principall 
indeavour  to  attaine  thereunto,  all  which  is  implyed  by  the 
words  and  several  &c.  in  this  Section. 

Here  the  cause  of  the  entrie  of  the  donor  into  a  moitie  in  this 
case  is,  that  in  as  much  as  the  inheritance  is  severall,  the  rever- 
sion is  severall.  Therefore  upon  the  severall  determination  of 
the  estate  in  taile,  the  donor  may  enter.  And  the  law  termeth 
a  reversion  to  be  expectant  upon  the  particular  estate,  because 
(Post.  191,  b.  the  donor  or  lessor,  or  their  heirs,  after  every  determination  of  • 
Hob.  33.)  any  particular  estate,  doth  expect  or  look  for  to  enjoy  the  lands 

or  tenements  again. 

Dyer,  14  El.  300.  "  The  reversion  of  them  in  law  is  severall,  &cP  Hereby,  and  by 
this  &c.  is  implyed,  that  upon  one  joint  or  entire  gift  or  lease 
there  is  one  joynt  or  entire  reversion,  and  upon  severall  gifts  or 
leases  there  be  severall  reversions.  And  this  is  to  be  understood 
of  the  reversion  in  the  donor  or  his  heires.  But  albeit  the  gifts 
or  leases  be  severall,  yet  if  the  donors  or  lessors  grant  the  re- 
version to  two  or  more  persons  and  their  heirs,  they  are  joyn- 
tenants of  the  reversion.  And  so  it  is  of  a  remainder.  And 
therefore  if  a  gift  be  made  to  two  men  and  the  heires  of  their  two 
bodies  begotten,  the  remainder  to  them  two  and  their  heires. 
they  are  joyntenants  for  life,  tenants  in  common  of 
(2  Co.  60.  b.  the  state  taile,  and  joyntenants  of  the  J|@°  fee  simple  ri84."j 
Post.  299.  b.)  -^  remainder;  for  they  are  joynt  purchasers  of  the  fee  L  a-  J 
simple,  and  the  remainder  in  fee  is  a  new  created 
estate,  but  the  reversion  remaining  in  the  donor  or  his  heirs  is  a 
part  of  his  ancient  fee  simple. 

Sect.  284. 

\  ND  as  it  is  said  of  males,  in  the  same  manner  it  is  where  land  is 
given  to  two  females,  and  to  the  heires  of  their  two  bodies  engendered. 

44  E.  3.  tit.         "I  F  a  man  giveth  lands  to  two  men  and  one  woman,  and  the 
Taile,  13.  1   heires  of  their  three  bodies  begotten,  in  this  case  they  have 

[2  llo^Abr'^48     severall  inheritances;  for  albeit  it  may  be  said,  that  the  woman 
1  Co!^i20.'^  may  by  possibility  marry  both  the  men  one  after  another;  yet 

156.  i).  Ant.  46.  b.  first,  she  cannot  marrie  them  both  in  praesenti,  and  the  law  will 
10  Co.  60.  b.)       jjg^^gj,  jntend  a  possibilitie  upon  a  possibility,  as  first  to  marry  the 
one,  and  then  to  marry  the  other  (1);  secondly  the  form  of  the 

gift 


(1)  Yet  in  fol.  20.  b.  lord  Coke  allows  a  present  estate  tail  in  a  case  of 
double  possibility  equal  to  that  here  supposed ;  namely,  the  case  of  a  gift  to  the 
husband  of  A.  and  the  wife  of  B.  and  the  heirs  of  their  bodies.  See  further 
on  this  head,  Vin.  Abr.  tit.  Possihility,  and  Fearne  on  Conting.  Rem.  3d  ed. 
176.— [Note  63.] 


L.  3.  C.  3.  Sect.  285.    Of  Joyntenants.     [184.  a.  184.  b. 

gift  is,  to  the  heires  of  their  three  bodies,  which  is  not  possible, 
and  therefore  they  shall  have  several  inheritances.  And  so  it  is, 
if  a  gift  be  made  to  one  man  and  to  two  women,  mutatis  mu- 
tandis. In  the  same  manner,  if  a  gift  in  taile  be  made  to  a  man  [«]  18  E.  3.  39. 
and  his  mother,  [m]  or  to  a  man  and  his  sister  (2),  or  to  him  and  7  H.  4.  16. 
his  aunt,  &c.  in  this  and  like  cases,  albeit  the  gift  is  made 
to  a  man  and  a  woman,  yet  they  have  severall  inheritances ;  be- 
cause they  cannot  marry  together,  and  are  within  the  rule  and 
reason  of  our  author. 

Sect.  285. 

A  LSO,  if  lands  be  given  to  two  and  to  the  heires  of  one  of  them,  this 
is  a  good  joy  nture,  and  the  one  hath  a  freehold,  and  the  other  a  fee 
simple.  And  if  he  ivhich  hath  the  fee  dieth,  he  which  hath  the  freehold 
shall  have  the  entiertie  by  survivor  for  terme  of  his  life.  In  the  same 
manner  it  is,  where  tenements  be  given  to  two  and  the  heirs  of  the  body 
of  one  of  them  erigendred,  the  one  hath  a  freehold,  and  the  other  a  fee 
taile,  ^c. 

BY  this  Section,  and  the  <fec.  in  the  end  of  it,  they  are  joyu-  (2  Co.  60.  b.) 
tenants  for  life,  and  the  fee  simple  or  estate  taile  is  in  one  of 
them ;  and  because  it  is  by  one  and  the  same  conveyance,  they 
are  joyntenants,  and  the  fee-simple  is  not  executed  to  all  pur- 
poses as  hath  been  said  before  (3).  {^ect.  283.) 

If  a  fine  be  levied  to  two,  [»]  and  to  the  heires  of  one  of  ['0  42  E.  3. 9.^ 
them,  by  force  whereof  he  is  seised,  he  that  hath  fee  dieth,  and  ^^'-^  3  "s^gj^g  * 
after  the  joyntenant  for  life   dieth,  and  an  estranger  abates,  in  facias,  19. 
this  case  the  heire  may  either  suppose  the  fee-simple  executed,  29  H- 8- 
and  have  an  assise  of  Mortdauncester,  the  words  of  which  writ  be,  ^  j,  g'  3^^ 
Si  R.  pater  fuit  seisitus  die  quoobiit  in  dominico  siio  ut  defeodo;  F.  N.  B.  196. 
which  cannot  be  said  of  him  that  hath  but  a  remainder  expectant  219.    4  E.  3. 
upon  an  estate  for  life ;  but  in  respect  that  he  is  seised  of  a  fee  24'e.'^3.  70^.  ^' 
simple,  and  of  a  joynt  estate  in  possession,  the  words  in  the  writ  (  2  Co.  61.) 
be  true,  that  he  was  seised  in  dominico  sua  tit  defeodo  (i).  Like-  (1  Ro-  Abr. 
wise  the  heir  may  have  a  writ  of  right,  which  also  in  some  sort  %J^^  £81.) 
proves  the  fee  simple  executed ;  or  the  heire  may  have  a  scire 
facias  to  execute  the  fine,  by  which  the  heir  supposeth 

tlS^.  "1   JS^"  that  the  fee  was  not  executed,  or  he  may  main- 
b.      J   taine  a  writ  of  intrusion  where  the  heire  maketh  the 
like  supposition,  and  shall  terme  it  a  remainder.  (1). 
And  yet  when  land  is  given  to  two  and  to  the  heires  of  one 
of  them,  he  in  the  remainder  cannot  grant  away  his  fee  simple, 
as  hath  been  said  (2). 

Sect. 

"  (2)  See  Dy.  326.  a. 

(3)  Ant.  182.  b.  See  also  post.  297.  b.  Fearne  on  Conting.  Rem.  23,  24. 
26.  28,  29.  Bro.  Nouv.  Cas.  pi.  260.  303.  387.  These  references  will  intro- 
duce the  reader  to  most  of  the  learning  on  this  curious  point. 

(4)  See  however  Bro.  Nouv.  Cas.  pi.  115.  which  is  contra. 

(1)  Ace.  F.  N.  B.  204.  E.  So  also  such  heir  shall  have  a  writ  of  entry  in 
consimili  casu,  where  the  surviving  tenant  for  life  aliens  in  fee.  F.  N.  B.  207. 
B.— [Note  64.] 

(2)  See  ant.  182.  b. — There  is  a  seeming  difl&culty  in  this  passage.  But 
I  conceive  lord  Coke's  meaning  to  be,  that,  though  for  some  purposes  the 
estate  for  life  of  the  jointenant  having  the  fee  is  distinct  from  and  unmerged 

Vol.  II.— 5  in 


184.  b.J  Of  Joyntenants.    L.  3.  C.  3.  Sect.  286. 


Sect.  286. 

A  LSO,  if  two  joyntenants  he  seised  of  an  estate  in  fee  simple,  and  the 
one  grants  a  rent  charge  by  his  deed  to  another  out  of  that  which  he- 
longeth  to  him{d),  in  this  case  during  the  life  of  the  grantor  the  rent 
charge  is  effectuall ;  hut  after  his  decease  the  grant  of  the  rent  charge  is 
void,  as  to  charge  the  land,  for  he  which  hath  the  land  by  survivor  shall 
hold  the  tvhole  laiid  discharged.  And  the  cause  is,  for  that  which  he  survi- 
veth  claimeth  and  hath  the  land  hy  the  survivor  {ii)  and  hath  not,  nor  can 
claime  any  thing  hy  descent  from  his  companion,  ^c.  But  otherwise  it  is  of 
parceners,  for  if  there  he  two  parceners  of  tenements  in  fee  simple,  and 
before  any  partition  made  the  one  chargeth  that  ivhich  to  her  belongeth  hy  her 
deed  with  a  rent  charge,  ^c.  and  after  dieth  without  issue,  by  which  that 

which 

in  his  greater  estate,  yet  for  granting  it  is  not  so,  but  both  estates  are  in  that 
respect  consolidated  notwithstanding  the  estate  of  the  other  jointenant;  and 
therefore  that  the  fee  cannot  in  strictness  of  law  be  granted  as  a  remainder  eo 
nomine,  and  as  an  interest  distinct  from  the  estate  for  life.  This  explanation 
is  confirmed  by  a  note  in  a  Coke  upon  Littleton  I  have,  in  which  it  is  strongly 
observed,  that  "  the  two  estates,  viz.  for  life  and  in  fee,  or  rather  one  knotted 
"  estate,  are  so  confounded  together  in  one  person,  that  he  cannot  sever  them 
"  and  make  them  distinct  estates,  for  he  cannot  grant  the  estate  for  life  re- 
''  serving  to  himself  the  fee  simple  nor  can  he  grant  the  fee  simple  and  reserve 
"  the  e.?tate  for  life,  but  he  may  pass  away  all  his  interest  by  feoffment,  or  he 
"  may  forfeit  all."  See  Bro.  Nouv.  Cas.  pi.  115.  It  also  much  agrees  with  the 
language  of  lord  Coke's  report  of  Wiscot's  case,  especially  where  he  observes, 
that  when  an  estate  is  made  to  three  and  the  heirs  of  one,  he,  icho  hath  the  fee, 
cannot  grant  over  his  remainder,  and  continue  in  himself  ayi  estate  for  life,  for 
which  lord  Coke  cites  12  E.  4.  2.  b.  See  3  Co.  61.  a.  Besides  if  the  passage 
here  should  be  understood  to  signify,  that  the  jointenant  having  the  fee  could 
not  in  any  form  pass  away  the  fee  subject  to  the  estate  of  the  other  jointenant, 
it  would  not  only  be  contrary  to  the  power  of  alienation  necessarily  incident 
to  a  fee  simple,  but  would  be  inconsistent  with  lord  Coke's  own  doctrine  in  a 
subsequent  part  of  his  commentary.  See  the  case  of  an  estate  to  father  and 
son  and  the  heirs  of  the  father,  post.  367.  b.  See  also  post.  Sect.  578.  Indeed 
lord  Coke's  position  thus  qualified  appears  to  have  a  strictness  in  it,  which 
with  some  may  perhaps  render  it  questionable.  However  he  seems  justified 
by  the  words  in  the  year-book,  which  he  cites  as  his  authority;  for  they  are, 
that,  if  two  have  land  to  them  and  the  heirs  of  one,  he  v:ho  hath  fee  cannot  grant 
the  reversion  of  his  companion  to  another  ;  but  if  both  alien  all passeth.  See 
further  as  to  grant  of  a  remainder  or  reversion  by  one  having  a  present  and 
previous  estate,  Shepp.  Touchstone,  237.  and  Shepp.  Common  Assur.  12,  13*. 
—[Note  65.] 

(3)  &c.  in  L.  &  M.  &  Roh. 

(4)  &c.  in  L.  &  M.  &  Roh. 

*  Where  lands  were  limited  to  the  use  of  K.  for  life,  remainder  to  trustees  during  the 
life  of  A.  to  preserve  contingent  remainders  ;  remainder  to  his  sons  suceesively  in  tail  male, 
and  for  default  of  such  issue,  to  the  right  heirs  of  A. ;  Mr.  Fearne  was  of  opinion  that  it 
was  doubtful  whether  A.'«  life  estate  and  remainder  or  reversion  in  fee  were  not  so  conso- 
lidated, as  to  render  it  impossible  for  A.  to  convey  his  remainder  or  reversion  in  fee,  sepa- 
rately and  distinctly  from  his  life  estate.  To  obviate  this  doubt  he  recommended  that  the 
land  should  be  conveyed  to  the  proposed  releasee  and  his  heirs,  to  the  use  of  A.  for  life  ; 
remainder  to  the  trustees  for  preserving  contingent  remainders  during  his  life,  remainder 
to  the  sons  of  A.  successively  in  tail  male  ;  by  way  of  confirmation  or  establishment  of 
those  uses  under  the  settlement  ;  with  the  proposed  remainders  ov  er. 


L.  3.  C.  3.  Sect.  286.    Of  Joyntenants.      [184.  b.  185.  a. 

which  helongeth  to  her  descends  to  the  other  parcener,  in  this  case  the 
other  parcener  shall  hold  the  land  charged,  ^c.  because  she  came  to  this 
moity  hy  descent,  as  heir,  ^c. 

"  ^LAIME  any  thing  hy  descent  from  his  companion,  dT." 

By  which  &c.  is  iraplyed,  that  so  it  is  if  one  joyntenant  f.  N.  B.204. 20". 

acknowledge  a  recognisance  or  a  statute,  or  suffreth  a  judgment  7  H.  6.  2. 

in  an  action  of  debt,  &c.  and  dieth  before  execution  had,  it  shall  J^  ^- 1- 1|- 

not  be  executed  afterwards  (5).     But  if  execution  be  sued  in  17  r.  2.  tit', 

the  life  of  the  conusor,  it  shall  bind   the  survivor.     And  it  is  Charge,  15. 

further  implyed,  that  both  in  the  case  of  the  charge  and  of  the  ^?f-  ^^-  ^• 

recognisance  statute  and  judgment,  if  he  that  chargeth,  &c.  sur-  /g  Co!  79.  a.) 
vive,  it  is  good  for  ever. 

And  so  it  is  (o)  if  a  man  be  possessed  of  certaine  lands  for  [o]  9  H.  6.  32. 

term  of  yeares  in  the  right  of  his  wife,  and  granteth  a  rent  (Hob.  .3.  Plowd. 
charge,  and  dyeth,  the  wife  shall  avoyd  the  charge  (6);  but  if  the  ' 

husband  had  survived,  the  charge  is  good  during  the  terme. 

If  a  villeine  purchase  lands,  and  binde  himselfe  in  a  recogni- 
sance, if  the  lord  enter  before  [p]  execution,  the  lord  shall  avoyd  [p]  g  E.  3. 
the  same,  as  hath  been  said.    But  otherwise  it  is  if  he  had  made  tjt.  Execution, 
a  lease  for  yeares,  for  the  reason  that  Littleton  here  yieldeth  in  ^^^.tham. 
this  Section  (7). 

If  two  joynetenants  be  of  a  terme,  [5]  and  the  one  of  [q]  14  H.  8.  22. 

ri85."|  them  grant  to  /.  S.  that  Jg^^if  he  pay  to  him  ten  pound  Pi-  Com.  263.  b. 

L     a.     J  before  Michaelmasse,  that  then  he  shall  have  his  terme,  j,°ge^°^®  ^*^®'^ 

the  grantor  dyeth  before  the  day,  /.  *S'.  pays  the  summe  (Finch's  L.  97. 

to  his  executors  at  the  day,  yet  he  shall  not  have  the  tearme,  but  6  Co.  35.   2  Ro. 

the  survivor  shall  hold  place :  for  it  was  but  in  nature  of  a  com-  ^^^-  ?^'  ^^o, 

/-INI         •/•111  1         1  /•  ii-      Cro.  Jam.  91, 

munication(l):  but  it  he  had  made  a  lease  tor  yeares,  to  begin  92.) 

at  Michaelmasse,  it  should  have  bound  the  survivor  (2). 

And  where  Littleton  putteth  the  case  of  a  rent  charge,  it  is  so 
likewise  implyed,  that  if  one  joyntenant  granteth  a  common  of 
pasture,  or  of  turbary,  or  of  estovers,  or  a  corody,  or  such  like,  45  E.  3. 13. 
out  of  his  part,  or  a  way  over  the  land,  this  shall  not  bind  the  Vide  Sect.  289. 
survivor:  for  it  is  a  maxime  in  law,  thatjws  accrescendi prsefer- 
tur  oneribus;  and  there  is  another  maxime,  that  alienatio  rei 
prsefertur  juri  accrescendi. 

If  one  joyntenant  in  fee  simple  be  indebted  to  the  king,  and 
dyeth,  [r]  after  his  decease  no  extent  shall  be  made  upon  the  [r]  40  Ass.  36. 
land  in  the  hands  of  the  survivor.  v^4^^r^14q 

If  a  recovery  be  had  against  one  joyntenant,  who  dyeth  before  pj  ^^^^  321", 
execution,  the  survivour  shall  not  avoid  this  recovery :  because  (i  Co.  86.  Post, 
that  the  right  of  the  moitie  is  bound  by  it.  352.  a.) 

If  one  joyntenant  in  fee  take  a  lease  for  yeares  of  an  estranger 
by  deed  indented  and  dyeth,  the  survivour  shall  not  be  bound  by  « 

the  conclusion;  because  he  claymes  above  it,  and  not  under  it. 

^^And 


(5)  See  ace.  7  H.  7.  13.  b.  &  2  Ro.  Abr.  88. 

(6)  Yet  the  husband's  alienation  of  the  term  itself,  or  of  any  part  of  it,  binds 
the  wife  surviving.  Post.  351.  a.  The  reason  of  this  diflFerence  is  explained 
post.  185.  a.  It  is  also  well  explained  in  Finch's  L.  13  and  98.  and  in  the  New 
Abridgment,  tit.  Baron  et  feme,  C  2.     See  further,  1  Vern.  396. — [Note  66.] 

(7)  See  also  the  reason  given  in  Sect.  289.     Plow.  419.     See  further  466. 

(1)  See  Dy.  337.  a. 

(2)  See  post.    Sect.  289. 


185.  a.] 


[«]  14  E.  4.  1.  b. 
18  E.  2. 
Briefe,  830. 
8  E.  2.  Entry,  rr. 
18  E.  3.  28. 
38  E.  3.  26. 
8  H.  6.  25. 
Vid.  46  E.  3.  77. 
35  H.  6.  39. 
[t]  Dier.  Mich. 
2  &  3  Eliz.   187. 
lib.  1.  fol.  96. 
Vide  lib.  6. 
fol.  78,  79. 
(Post.  318.  a.) 


[u]  33  H.  6.  5.  a. 
9Eliz.Dyer,263. 

[ic]  37  H.  8. 
tit.  Alienation, 
Br.  31. 
10  E.  4.  3.  b. 
40  E.  3.  41.  b. 
33  H.  6.  5. 
22  H.  6.  42.  b. 
per  Pole. 
35  E.  3. 
Release,  43. 
33  E.  3. 
Avowry,  195. 
14  H.  8.  2.(6) 
(Cro.  Jam.  696. 
Plowd.  198. 
6  Co.  79.  a. 

8  Co.  145. 

9  Co.  107.  b. 
Post.  233.  b.) 


Of  Joyntenants.     L.  3.  C.  3,  Sect.  286. 

"And  the  cause  is, /or  that  he  which  surviveth  claimeth  and 
hath  the  land  hy  the  survivor,  dx."  Here  again  Littleton  sheweth 
the  reason :  and  the  cause,  wherefore  the  survivour  shall  not 
hold  the  land  charged,  is,  for  that  he  claymeth  the  land  from 
the  first  feoffor  (3),  and  not  by  his  companion,  which  is  LittletorCs 
meaning  when  he  saith,  (that  he  claimeth  by  survivor)  for  [s] 
the  surviving  feoffee  may  plead  a  feoffment  to  himself  without 
any  mention  of  his  joynt  feoffee  (4).  And  this  is  the  reason, 
that  if  two  joyntenants  be  in  fee,  and  the  one  maketh  a  lease  for 
yeares,  reserving  a  rent  and  dyeth,  the  surviving  feoffee  \t\  shall 
have  the  reversion  by  survivor,  but  he  shall  not  have  the  rent, 
because  he  claimeth  in  from  the  first  feoffor,  which  is  paramount 
the  rent.  If  there  be  two  joyntenants  in  fee,  and  the  one  joyn- 
tenant  granteth  a  rent  charge  out  of  his  part,  and  after  releaseth 
to  his  jnynt  companion  and  dyeth,  he  shall  hold  the  land  charged, 
for  that  he  is  out  of  the  reason  and  cause  set  downe  by  Littleton, 
because  he  claimeth  not  by  survivor,  in  as  much  as  the  release 
prevented  the  same.  And  of  this  opinion  was  Littleton  him- 
selfe  [w]  before  the  edition  of  his  booke.  But  all  men  agree, 
that  if  A.  B.  and  C.  be  joyntenants  in  fee,  and  A.  chargeth  his 
part  and  then  releaseth  to  B.  and  his  heirs,  and  dyeth,  that 
the  [«;]  charge  is  good  for  ever;  because  in  that  case  B.  cannot 
be  in  from  the  first  feoffor,  because  he  hath  a  joynt  companion 
at  the  time  of  the  release  made,  and  several  writs  of  prsecipe 
must  be  brought  against  them  (5).  And  albeit  the  release  of 
one  joyntenant  to  the  residue  of  the  joyntenants  makes  no  de- 
gree in  supposition  of  law,  neither  is  there  any  severall  estate 
between  them,  but  the  estate  of  him  that  releaseth  is  as  it  were 
extinguished  and  drowned  in  their  estate  and  possession,  so  as 
one  'praecipe  lyeth  against  them  (7),  yet  shall  they  hold  the  land 
charged  as  is  aforesaid.  As  if  tenant  for  life  grant  a  rent  charge, 
and  after  surrendreth  his  estate  to  the  lessor,  albeit  the  estate 
charged  be  drowned,  and  the  lessor  is  not  in  by  him,  yet  he 
shall  hold  it  charged  (8). 

"  But  othericise  it  is  of  parceners,  for  if  there  he  two  parceners, 
&c."  This  is  to  be  intended  as  well  of  parceners  by  custome  as 
of  parceners  by  the  common  law;  and  here  is  implyed  the  reason 
of  the  diversitie,  for  that  the  survivor  doth  claime  above  the 
charge,  and  the  heire  by  descent  under  the  charge (9). 

Sect. 


(3)  For  this  same  reason  a  wife  shall  not  have  dower  out  of  lands  of  which 
her  husband  was  jointenant.  Ant.  37.  b.  See  post.  385.  a.  a  case  of  warranty 
depending  on  the  same  principle. — [Note  67.] 

(4)  Ace.  F.  N.  B.  219.  B. 

(5)  As  to  the  partial  effect  of  such  a  release  on  the  jointenancy,  see  post. 
Sect.  304. 

(G)  It  should  be  12.  a. 

(7)  See  the  case  of  waste  in  Brownl.  Rep.  238. 

(8)  Ace.  338.  b.  233.  b. 

(9)  In  Calthrope's  reading  on  Copyholds,  64.  the  doctrine  of  admission  on 
the  death  of  copyholders  being  jointenants  or  parceners  is  stated  according  to 
this  diyersity. 


L.  3.  C.  3.  Sect.  287.     Of  Joyntenants.     [185.  a.  185.  b. 


Sect.  287. 

A  LSO,  if  there  he  two  joyntenants  of  land  in  fee  simple  within  a 
borough  where  lands  and  tenements  tvere  devisable  by  testament,  and 
if  the  one  of  the  said  tivo  joyntenants  deviseth  that  tvhich  to  him  belongeth 
by  his  testament,  <|*c.  and  dieth,  this  devise  is  voide.  And  the  cause  is, 
for  that  no  devise  can  take  effect  till  after  the  death  of  the  devisor,  and 
by  his  death  all  the  land  presently  commeth  by  laio  to  his  companion, 
which  surviveth,  by  the  survivor  ;  the  which  he  doth  not  claime,  nor  hath 
any  thing  in  the  land  by  the  devisor,  but  in  his  oivn  right  by  the  survi- 
vor according  to  the  course  of  laiv,  ^c.  and  for  this  cause  such  devise  is 
void.  But  otherivise  it  is  of  parceners  seised  of  tenements  devisable  in 
like  case  of  devise,  S^c.  causa  qua  supra. 

"  DYMs  testament,  &c."      Either  in  writino;  or  nuncupative.  1  Bl.  R.  476. 
X>  J-        .     ,1  .  r  7    3  Burr.  1488. 

according  to  the  custome.  Amb.  617. 

See  also  Perk. 
"  And  the  cause  is,  for  that  no  devise  can  take  effect  till  after  the  s.  600. 

death  of  the  devisor  (10)  and  hy  his  death  all  the  land  ^^-  ^*-  ^^-  ^'^'^• 

[185.~|  presently commethhi/  thelawtohis companion,  "S^^&c." 
b.     J   Here  both    their    claims  commence  at  one  instant; 

and  although  an  instant  est  unum  indivisih'de  tempore  PI.  Com.  in  Ful- 
quod  non  est  tempus  nee  pars  temjwres,  ad  quod  tamcn  partes  merston's  case. 
tempores  connectuntur,  and  that  instans  est  finis  unius  temporis  et 
principium  alterius  (1)  ;  yet  in  consideration  of  law  there  is  a 
prioritie  of  time  in  an  instant,  as  here  the  survivor  is  preferred 
before  the  devise  ;  for  Littleton  saith,  that  the  cause  is  that  no 
devise  can  take  effect  till  after  the  death  of  the  devisor,  and 
by  his  death  all  the  land  presently  commeth   by  the  law  to  his 
companion.     Whereby  it   appcareth,    that    Littleton   by    these 
words  post  mortem  ct  per  mortem,  though  they  jump  at  one 
instant,  yet  alloweth  priority  of  time  in  the  instant  which  he 
distinguisheth  hyper  audpw<.     And  the  reason  of  this  prioritie  (Plowd.  258.  b. 
is,  that  the  survivor  clayraeth  by  the  first  feoffor  (as  hath  been  ^^^^  ^°-  *•) 
said)  and  therefore  in  judgment  of  law  his   title  is  paramount 
the  title    of    the    devisee,   and  consequently  the  devise   void, 
and  the  rule  of  law  is,  that  jus  accrescendi  prcefertur  xdtimoi 
voluntati  (2). 

Two  ferns  joyntenants  of  a  lease  for  yeares,  one  of  them  taketh  (Plowd.  418. 
husband  and  dieth,  yet  the  term  shall  survive  :  for  though  all  ]}:°^-^-.    „  > 
chattels  reals  are  given  to  the  husbLind,  it  he  survive,  yet   the 
survivor  between  the  joyntenants  is  the  elder  title,  and  after  the 

marriage 


(10)  Ace.  ante  112.  a.  b.  as'  a  reason  for  the  goodness  of  a  devise  by 
husband  to  wife. 

(1)  Therefore  in  Fitzwilliam's  case,  6  Co.  32.  it  was  argued,  that  the 
indulgence  of  the  law  in  connecting  two  times  to  make  one  instant  time  cannot 
be  extended  to  three  times.  See  post.  298.  a.  a  case  in  which  priority  of  time 
in  an  instant  is  allowed,  for  sake  of  saving  the  remainder  in  fee  of  a  rent  from 
the  effect  of  a  suspension  of  the  particular  estate. — [Note  68.] 

(2)  Ace.  as  to  goods,  Office  of  Exec.  ed.  1676,  p.  26.  Perk.  sect.  526. 
Swinb.  on  Testam.  part.  3.  sect.  6. 


185.  b.  1 86.  a.J     Of  Joyntenants.     L.  3.  C.  3.  Sect.  288. 

marriage  the   feme   continued  sole  possessed ;  for,   if  the  hus- 
band djeth,  the  feme  shall  have  it,  and  not   the  executors  of 
the  husband  (3).    But  otherwise  it  is  of  personal  goods. 
1  H.  5.  Execu-         If  a  man  be  seised  of  a  house,  and  possessed  of  divers  heir- 
tors,  108.  lomes,  that  by  custom  have  gone  with  the  house  from  heire   to 
heire,  and  by  his  will  deviseth  away  the  heirelomes,  this  devise 
is  void ;    for  Littleton  here   saith,  the  will  taketh  effect  after 
his  death,  and  by  his  death  the  heirlomes  by  ancient  custome 
are  vested  in  the  heire  (4),  and  the  law  preferreth   the  custome 
before  the  devise.     And  so  it  is  if  the  lord  ought  to  have  a 
heriot  when  his  tenant  dieth,  and  the  tenant  deviseth  away  all 
his  goods,  yet  the  lord  shall  have   his  herriot  for   the  reason 
aforesaid.     And  it   hath  been  anciently  said,  that  the  herriot 
[r]  Fleta,  lib.  2.  gl^all  be  paid  before   the  mortuary,     [x]  Imprimis  autem  debet 
B*acton  lib.  2.    quilihet,    qus  testaverit,    dominum    suum  de  meliore  re  quam 
fol.  60.  habuerit   recognoscere,  et  postea  ecclesiam  de   alia  meliore,  &c. 
Britton,  fol.  178.  -wherein  the  lord  is  preferred,  for  that  the  tenure  is  of  him.     This 
^amb.  ol.   19.    ^^^.^  ^^  ^t^^  ^q^^  jg  yery  antient ;    for  in  the  laws  before  the 
Conquest  is  said,  sive  quis  incurid,  sive  morte  repentind,  fuerit 
intestai'  mortuus,  dominus  tamen  nullum  rerum  suarum  partem 
(praeter  earn  qucejure  debetur  herioti  nomine)  sibi  assumito  (6). 
In   the    Saxon   tongue   it  is  called   heregeat,  as   much  to   say 
(as  I  take  it)  as  the  lord's  [beste]  ;  for  here  is  lord,  and  geat  is 
[beste].     But  let  us  return  to  Littleton. 

"  But  otherwise  it  is  of  parceners  seised  of  tenements  deviseable 
in  like  case  of  devise,  Sc.  causa  qua  supra." 

The  reason  is  evident,  for  that  there  is  no  survivour  between 
coparceners,  but  the  part  of  the  one  is  descendible,  and  conse- 
quently may  be  devised. 


Sect.  288. 


[^?."] 


A  LSO,  it  is  commonly  said,  that  every  jointenant  is  seised  of  the  land 

which  he  holdeth  jointly  (1)  per  my  et  per  tout ;  and  this  is  as  much 

to  say,  as  he  is  seised  by  every  parcell  and  by  the  tvhole,  ^c,  and  this  is 

true,  for  in  every  parcell,  and  by  every  parcell  and  by  all  the  lands  and 

tenements  he  is  joyntly  seised  with  his  companion  (2). 

Vide  Sect.  697.     "   A  LSO,  it  is  commonly  said,  &c."  That  is,  it  is  the  common 
opinion,  and  communis  opinio  is  of  good  authority  in  law. 
A  commiini  observantid  non  est  recedendum  (3),  which  appeareth 
here  by  Littleton. 

>  "  Per 

(3)  See  ante  46.  b.  post.  351.  a.  and  the  case  of  a  purchase  by  husband  and 
wife  jointly,  the  former  being  a  villein,  in  2  Ro.  Abr.  733.  D.  pi.  2. 

(4)  Ace.  ante  18.  b. 

(5)  It  should  be  cap.  57. 

(6)  See  this  same  passage  cited  ante  176.  b. 

(1)  &c.  in  L.  &  M.  &  Roh. 

(2)  &c.  in  L.  &  M.  *  Roh. 

(3)  This  same  maxim  is  cited  post.  229.  b.  and  364.  b.  In  Wingate's  Max- 
ims, 752,  there  is  a  variety  of  cases  collected  to  illustrate  the  application  of 
this  rule.     Other  rules  immediately  connected  with  this  are,  that  communis 


L.  3.  C.  3.  Sect.  288.     Of  Joyntenants.  [186.  a. 

"  Per  my  et  per  tout."     Et  sic  totum  tenet  et  nihil  tenet,  scil.  ^^^^'^■^^\  ^ 
tot^hm  conjunctim,  et  nihil  per  se  separatim.  And  albeit  they  are  g  r"',  Abr.  86.) 
so  seised  (as  for  example  where   there  be  two  joyntenauts  in  vide  Biacton, 
fee)  yet  to  divers  purposes  each  of  them  hath  but  a  right  to  a  lib-  5.  fo.  430 
moitie ;  as  to  enfeoflfe  give  or  demise,  or  to  forfeit  (4)  or  lose  pi^gf^b-T 
by  default  in  di  praicipe{b).     If  my  villein  [y]  and  another  pur-  cap.  4. 
chase  lands  to  them  two  and  their  heircs,  I  may  enter  into  a  40  E.  3.  40. 

.,  18E.  2.  Bre.  831. 

DlOlty-  35  H.  6.  39. 

Vido  the  second  part  of  the  Institutes  upon  the  6  chapter  of  the  statute  de 
bigamis.  Fleta.  lib.  1.  cap.  28.  40  Ass.  79.  48  E.  3. 16.  [y]  Vid.6  E.  3.  4. 
7  E.  4.  29.     11  El.  Dyer,  183.     (2  Co.  58.  a.  Cro.  Jam.  91.     I  Leon.  47.) 

And  where  all  the  joyntenants  joyne  in  a  feoffment,  every  of 
them  in  judgment  of  law  doth  give  but  his  part  (6).     If  an  alien 
and  a  subject  purchase  lands  jointly,  the  king  upon  office  found 
shall  have  but  a  moity  (7).     And  Lltthton  afterwards  in  this 
Chapter  (8)  saith  that  one  joynt  tenant  hath  one  moity  in  law, 
and  the  other  the  other  moity.     And  therefore  if  two  joynten- 
ants be  [z\  and  both  they  make  a  feoffment  in  fee  upon  condition,  [«]  PI.  Com. 
and  that  for  breach   thereof  one  of  them  shall  enter  into  the  f^i^^j^^'^^^'^'J'*'''"' 
whole,  yet  he  shall  enter  but  into  a  moitie,  because  no  more  in  ^p^gt,  i92.'a.) 
judgment  of  law  passed  from  him  (9)  :  and  so  it  is  of  a  gift  in 
taile  or  a  lease  for  life,  &c. 

Yet  every  iovntenant  may  warrant  the  whole;  [a]  because  a  [«1  Vide  the 

J    J   J  J  „  I,-       /I  AN  second  part  of 

man' may  warrant  more  than  passeth  trom  nim  (iU).  j.jje  institutes 

If  two  joyntenants  make  a  feoffment  in  fee  \U\  and  one  of  the  upon  the  6 

feoffors  dye,  the  feoffee  cannot  plead  a  feoffment  from  the  sur-  chapter  of    ^  ,  - 

.  >=j,         ,,,  1/.,!  T^iU-  i.     the  statute  of 

vivor  of   the  whole  because  each  ot  them  gave  but  his  part;  ^jig^mis. 
but  otherwise  it  is  on  the  part  of  the  feoffee,  as  hath  been  said  [j]  i4  B,  4.  5. 

before.  bookeVabove'- 

And  where  two  joyntenants  be,  the  one  of  them  [c]  may  make  ^°?^^^ 

the  other  his  baylife  of  his  moiety,  and  have  an  action  of  account  [^j  21  E.  3.  60. 

(11)  against  him.     And  one  joyntenant  {d]  may  let  his  part  for  (Pos^t^  ^"3*^"^ 

yeares  or  at  will  to  his  companion.  60.33. 

If  two  joyntenants  be  of  certaine  lands,  and  the  one  of  them  (Post.  193.  b. 

by  deed  indented  fe]  bargaineth  and  selleth  the  lands,  and  the  33^.  a.) 

Faits  inroll.  9.  Br.     (Cro.  Ch.  217.  569.     1  Co.  173. 

other 


error  facit  jus,  and  res  judicata  pro  veritate  habetur,  and  also  that  minimi 
mutanda  sunt  qno}  cerfam  interpretationem  hahuerunt,  as  to  which  see  post. 
365.  a.  Hob.  147.  Wing.  Max.  758.  and  ant.  52.  b.  in  the  margin.  In  a  late 
ecclesiastical  case  of  great  importance,  in  which  bonds  of  resignation  were  con- 
demned by  the  supreme  court  of  appellant  jurisdiction,  these  four  maxims  ap- 
pear to  me  to  have  included  the  chief  topic  of  argument  in  favour  of  such 
bonds.— [Note  69.] 

(4)  Ace.  as  to  copyholders  being  jointenants,  Calthorpe's  Reading,  97.  Kitch. 
French  ed.  82.  a. 

(5)  See  ant.  125.  b. 

(6)  Ace.  11  H.  7.  a.  pi.  5. 

(7)  See  ant.  180.  and  note  2,  there. 

(8)  Post.  Sect.  291. 

(9)  See  ant.  47.  a.  &  post.  214.  a.  the  case  of  a  lease  by  two  jointenants  with 
reservation  of  rent  to  one,  and  the  difference  there  taken  between  such  a  lease 
by  parol  and  one  by  deed  indented.     See  also  Dy.  263.  a. 

^10)  See  post.  Sect.  700. 
(11)  See  ant.  172.  a. 


186.  a.  186.  b.]    Of  Joyntenants.      L.  3.  C.  3.  Sect.  289. 

other  joyntenant  dyeth,  and  then  the  deed  is  inrolled,  there  shall 
passe  nothing  but  the  moity  which  the  bargainor  had  at  the  time 
of  the  bargain  (12). 

Sect.  289. 

A  LSO,  if  two  joyntenants  he  seised  of  certaine  lands  in  fee  simple, 
and  the  one  letteth  that  to  him  belong eth  to  a  stranger  for  terme  of 
forty  yeares  and  dyeth  before  the  terme  beginneth,  or  within  the  terme, 
in  this  case  after  his  decease  the  lessee  may  enter  and  occupie  the  moitie 
let  unto  him  during  the  terme,  Sj-e.  although  the  lessee  had  never  the 
possession  thereof  in  the  life  of  the  lessor,  by  force  of  the  same  lease,  ^c. 
And  the  diversitie  betweene  the  case  of  a  grant  of  a  rent  charge  (1) 
[aforesaid,  and  this  case,  is  this.  For  in  the  grant  of  a  rent  charge  by^  a 
joyntenant,  ^e.  the  tenements  remaine  alwayes  as  they  were  before,  with- 
out this,  that  any  hath  any  right  to  have  any  parcell  of  the  tenements 
but  they  themselves,  and  the  tenements  are  in  the  same  plight  as  they 
were  before  the  charge,  ^c.  But  where  a  lease  is  made  by  the  joynten- 
ant to  another  for  tearme  of  yeares,  ^c.  presently  by  force  of  the  lease 
the  lessee  hath  right  in  the  same  land,  (videlicet)  of  all  that  which  to  the 
lessor  belong  eth,  and  to  have  this  by  force  of  the  same  lease  during  Ms 
terme  (2).     And  this  is  the  diversitie  (3). 

"  J)  Y force  of  the  same  lease,  &c." 

[/]  Vid  Sect  -'^     By  this  &c.  is  implyed,  [/]  that  where  our  author  speak- 

i^S  V2''*  ^^^  ^^  joyntenants  seised  in  fee,  that  so  it  is  if  two  be  seised 

(Dyer,  187.  a.  for  life,  and  one  make  a  lease  to  begin  presently  or 

2  Ro.  Abr.  89.)  g^^  in  future,  and  dieth,  this  lease  shall  binde  the  sur-  ri86.~j 

Q7]  11  H.  4.  90.  vivor,  as  it  hath  been  adjudged  (4).     [g'\  And  if  one   L     t).     J 

17  E  4  e'a  joyntenant  grant  vesturam  terrce  or  herhagium  terrce, 

9  H.  6.  52.  *       for  yeares,  and  dieth,  this  shall  binde  the  survivor;  for  such  a 

21  H.  7.  29.         lessee  hath  right  in  the  land.     So  it  is  if  two  joyntenants  be  of 

18  E  3  *  ^  water,  and  the  one  granted  the  several  pischary. 
Execution,  56.  11.  El.  Dy.  285.  Plow  Com.  160.  a.  Temps.  E.  1.  Ass.  422. 
20  H.  6.  4.     7  H.  7.  13.     10  H.  7.  24.     (Ante  4.  b.) 

"  The  one  letteth."     If  two  joyntenants  be  of  an  advowson, 
[A]  6  E.  3.  and  \K\  the   one   presenteth  to  the  church,  and  his  clerke  is 

7^E^3'  20'  21  admitted  and  instituted,  this  in  respect  of  the  privity  shall 
17E.  3.  37.  b.      not  put  the  other  out  of  possession  (5);  but  if  that  joynten- 

22  E.  3.  9.  ant  that  presenteth  dieth,  it  shall  serve  for  a  title  in  a  quare 
11  H  4  54  impedit  brought  by  the  survivor  (6).  But  yet  if  one  joyntenant 
15  B.  3.  Dar.  Presentment,  11.     10  E.  4.  94.     1  H.  7.  1.  b.     2  R.  3.     Quar.  Imp.  102. 

9  El.  Dy.  259.      36  H.  8.  Br.   Present.      27   H.  8.  fo.  11.      5  H.  7.  8.      6  E.  4.  10.  b. 
Doct.  &  Stud  116.  34  H.  6. 40.  20  E.  3.  Quar.  Imp.  63.  P.  N.  B.  34.  V.  (2  Ro.  Abr.  355.) 

or 

(12)  See  ante  147.  b. 

(1)  The  following  words  between  brackets  not  in  L.  &  M.  nor  Roh. 

(2)  life  instead  of  terme  in  L.  &  M.  &  Roh. 

(3)  &c.  in  L.  &  M.  &  Roh. 

(4)  See  ace.  Cro.  Jam.  91.  &  2  Brownl.  175. 

(5)  See  post.  243.  a.  249.  a. 

(6)  Ace.  more  fully,  2  Inst.  365.  According  to  F.  N.  B.  34.  the  law  is  the 
same  between  coparceners  which  agrees  with  lord  Coke's  doctrine  about  them 
in  2  Inst.  365.  and  post.  243.  a.     See  further  the  case  of  usurpation  of  a  right 

of 


L.  3.  C.  3.  Sect.  290.  Of  Joyntenants.    [186.  b.  187.  a. 

or  tenant  in  common  present,  or  if  they  present  severally,  the 
ordinary  may  either  admit  or  refuse  to  admit  such  a  presentee, 
unlesse  they  joyn  in  presentation,  and  after  the  sixe  moneths  he 
may  in  that  case  present  by  lapse  (7). 

But  if  two  or  more  coparceners  be,  fH  and  they  cannot  aeree  [0  Bract.  H.  4. 
to  present,  the  eldest  shall  present;   and  if  her  sister  doth  dis-  B^jt  fol  223 
turbe  her,  she  shall  have  a  quare   impedit  against  her;   and  so  45  e.  3. 
shall  the  issue  and  the   assignee   of  the  eldest,  and  yet  he  is  Fines,  41. 
tenant  in  common  with  the  youngest  (8).     And  in  the  same  ]^'^'\'      ,-„ 

1  11  •        e     111  1     11  i     Quar.  Imp.  1/6. 

manner  the  tenant  by  the  curtesie  01   the  eldest  snali  present,  ^g  H.  6.  9. 

But  if  there  be  foure  coparceners,  and  the  eldest  and  the  second  19  E.  3.  ib.  50. 

present,  and  the  other  two  present  joyntly  or  severally,  the  or-  p^l^^B^34  y 

dinary  may  refuse  them  all;  for  the  eldest  did  not  present  alone,  (y\^^^s<l.i^2.  b. 

but  she  and  one  other  of  her  sisters.    But  now  let  us  returne  to  333.  a. 

Littleton  in  \\'::^l':,%^ 

F.  N.  B.  33.  E.    Ante  166.  b.    Post.  243.  a.  &  Sect.  299.) 

|-187.J  Bisect.  290. 

A  LSO,  joyntenants  (if  they  will)  may  maJce  partition  between  them, 
and  the  partition  is  good  enough  ;  hut  they  shall  not  be  compelled  to 
do  this  by  the  law  ;  but  if  they  will  make  partition  of  their  own  will  and 
agreement,  the  partition  shall  stand  in  force. 

"  lyj  AY  make  partition."     But  this  partition  must  be  [Ic]  by  (Post-.  198.  b.) 
•^'^   deed,  as  hath  been  said  before.      But  joyntenants  for  ^i-J'sig'^^'"" 
yeares  may  [H  make  partition  without  deed.  (Ante  169.  a. 

*p      "1^     T>      CO      "P    \ 

"  They  shall  not  he  compelled."     This  is  true  regularly;  but  j-/-]  jg  j;]_ 
by  the  custome  of  some  cities  and  boroughs,  one  joyntenant  or  Dyer,  350. 
tenant  in  common  may  compsll  his  companion,  by  writ  of  par-  F-  N-  ^-  ^2.  b. 
tition  grounded  upon  the  custome,  to  make  partition  (1).     But 
since  Littleton  wrote  jointenants  and  tenants  in  common  gene- 
rally are  compellable  to  make  partition  by  writ  framed  upon 
the  statutes  [m]  of  31  &  32  H.  8.  as  before  hath  been  said  (2).  [„,]  31 H.  S.c.l. 

32  H.  8.  cap.  32.  Vide  Sect.  264.  247.  2591-  Mich.  16  &  17  El.  1.  340.  inter  Harris 
&  Eden,  adjudge,  ace.  18  El.  Dy.  350.  b.  Vide  before  in  the  Chapter  of  Partition, 
many  bookes  cited  concerning  this  matter.  (Ante  175.  a.  Sect.  250.  Mo.  29.  Dy.  350. 
Ante  167.  b.)  3  E.  3.  48.  F.  N.  B.  9.  B.  7  Ass.  10.  7  E.  3.  29.  10  Ass.  17.  10  E.  3.  40. 
43.  12  Ass.  15.  17.  12  E.  3.  Judgement,  102.  20  E.  3.  Ass.  62.  28  Ass.  35.  23  Ass. 
10.  7  II.  6.  4.  19  H.  6.  45.  3  E.  4.  10.  Vide  Sect.  247.  Brit.  fo.  112.  lib.  6.  fo.  12 
&,  13.  Morrice's  case. 

And 


of  presenting,  ante  149.  a.     See  also  the  case  of  attornment  to  one  of  two 
jointenants,  post.  Sect.  566.     Add  5  Co.  97.  b. — [Note  70.] 

(7)  See  5  H.  7.  8.  a.  Burn.  Eccl.  L.  tit.  Advoivson,  Wats.  Compl.  Incumb.  c.  8. 

(8)  See  my  note  on  this  subject  ante  166.  b.     Hob.  119.     Dy.  55.  a. 

(9)  See  further  on  presentation  where  more  than  one  have  an  interest  in  an 
advowson,  2  Gibs.  Cod.  1st  ed.  804.  ante  17.  b.  18.  a.  17  Vin.  Abr.  325. 
Mallory's  Quare  Impedit,  71  to  75. 

(1)  For  instances  of  such  custom,  see  for  London,  F.  N.  B.  62.  B.  and  for 
gavelkind  land,  ante  Sect.  265.  and  Robins,  on  Gavelk.  108. 

(2)  Ante  169.  a. — In  a  Coke  upon  Littleton  I  have,  there  is  the  following 

note 

*  It  should  he  Sect.  250,  ax  it  seems.     See  the  note  below. 

+  Probably  Sect.  250,  and  the  Comment  thereon,  were  intended  to  he  re/erred  to;  for 
Sect.  259  treats  of  the  period  when  infanta  are  said  to  attain  their  full  age,  and  is  quite 
irrelevant  to  the  subject  of  partition. 


187.  a.]  Of  Joyntenants.       L.  3.  C.  3.  Sect.  291. 

And  albeit  they  be   now  compellable  to  make  partition,  yet 
seeing  they  are  compelhible  by  writ,  they  must  pursue  the  sta- 
"•  tutes,  and  cannot  make  partition   by  jiarol,  for  that  remaines 

at  the  common  law.  And  by  Littleton's  authoritie  herein  it 
seemeth  to  me,  that  if  one  joyntenant  or  tenant  in  common 
disseise  another,  and  the  disseisee  bring  his  assise  for  the  moytie, 
that  in  this  case,  though  the  plaintife  prayeth  it,  yet  no  judge- 
ment shall  be  given  to  hold  in  severaltie,  for  then  at  the  common 
law  there  might  have  beene  by  compulsion  of  law  a  partition 
between  joyntenants  and  tenants  in  common,  and  by  rule  of 
law  the  plaintife  must  have  judgement  according  to  his  pleint 
or  demand. 
[h]  29  E.  3.  If  two  joyntenants  be  [?i]  of  land  with  warranty,  and  they 

tit.  Garr.  make  partition  by  writing,  the  warrantie  is  destroyed ;  but  if  they 

make  partition  by  writ  of  partition  upon  the  statute,  the  warran- 
tie remaines,  because  they  are  compellable  thereunto  (3). 


Sect.  291. 

A  LSO,  if  a  joynt  estate  he  made  of  land  to  a  husband  and  wife  and 
to  a  third  person,  in  this  case  the  husband  and  wife  have  in  law  in 
their  right  but  the  moity,  (4)  [and  the  third  person  shall  have  as  much  as 
the  husband  aad  ivife,  viz.  the  other  moity,  ^c]  And  the  cause  is,  for 
that  the  husband  and  wife  are  but  one  person  m  law,  and  are  in  like  case 
as  if  an  estate  be  made  to  tivo  jointenants,  ivhere  the  one  hath  by  force  of 
the  joynture  the  one  moity  in  laiv,  and  the  other,  the  other  moity,  ^c.{l). 
In  the  same  manner  it  is  ivhere  an  estate  is  made  to  the  husband  and  ivife 
and  to  two  other  men,  in  this  ease  the  husband  and  wife  have  but  the  third 
part,  and  the  other  two  men  the  other  two  parts,  ^c.  causa  qua  supra. 

jyiORE  shall  be   said  of  the  matter  touching  jointenancy,   in   the 
Chapter  of  Tenants  in  Common,  and  Tenant  by  Elegit,  and  Tenant 
i>y  Statute  Merchant. 

(Post.  299.  b.        rpHE  husband  and  wife  have  in  laio  in  their  right   but  the 
f^r'  ^fis  tnoity,  &c."    William  Ode  and  Joane  his  wife  [o]  purchased 

Ante  28.  b.  n.  1.  ^3,nds  to  them  two  and  their  heires ;   after  William  Ode  was  at- 
[o]  Mich.  33.  E.  3.  coram  rege  Salop,  in  Thesaur.     (Post.  326.  a 
1  Ro.  Abr.  388,  389.     9  Co,  140.) 

tainted 


note  on  the  extent  of  the  statutes  of  31  and  32  H.  8.  "Adjudged  by  St.  John 
"chief  justice,  and  Windham  and  Archer  justices,  Hilary  1659  in  the  common 
"bench,  in  the  cause  between  Major  and  the  lord  Coventry,  that  a  tenant  by 
"  elegit  may  have  a  writ  of  partition  by  the  statute  of  32  H.  8,  and  it  is  within 
"  the  meaning  thereof."  This  is  followed  with  a  reference  to  Cro.  Cha.  44. 
where  it  is  said  that  the  statute  doth  not  extend  to  copyholds, — [Note  71.] 

(3)  Ace.  ante  165.  a.  and  b.  as  to  parceners,  because  they  are  compellable 
to  make  partition  at  common  law.  See  the  case  of  aid  between  parceners  after 
partition,  ante  174.  a.  and  b, 

(4)  The  words  following  between  brackets  not  in  L.  and  M.  or  Roh. 
(1)  No  &c.  in  L.  and  M,  or  Roh. 


L.  3.  C.  3.  Sect.  291.  Of  Joyntenants.    [187.  a.  187.  b. 

tainted  of  high  treason  for  the  murther  of  the  king's  ftither,  E.  2.  F.  N.  B.  194. 
and  was  executed;  Joan  his  wife  survived  him;  E.  3.  granted   Calth.  Co.  92. 
the  lands  to  Stephen  de  Bitterly  and  his  heires ;  John  Ilawkins  \  ^^'-^^H^ 
the  heire  of  the  said  Joan  in  a  petition  to  the  king  discloseth  Com.  Dig.  * 

this  whole  matter,  and  upon  a  scire  facias  against  the  Baron  &  Feme, 

[187. "I   patentee  hath  judgement  to  recover  the  5^°- lands,  for  ^  ^°"  ^^'"•271. 
b.     J   the  reason  here  yielded  by  our  author. 

But  if  an  estate  be  made  to  a  man  and  woman  and  yi^e  Sect.  665. 
their  heires  before  marriage,  and  after  they  marry,  the  husband 
and  wife  have  moities  between  them,  which  is  implyed  in  these 
words  of  our  author,  husband  and  loi/e  (2). 

"  But  one  person  in  law."  Bracton  saith,  [^]  vir  et  uxor  sunt  [p-]  Bracton, 
quasi  unica persona  quia  caro  una  et  sanguis  unus  (3).     It  hath  lib.  5.  fol.  416. 
been  said,  that  if  a  reversion  be  granted  to  a  man  and  a  woman  "it^^'  ^'  .« 
and  their  heires,  and  before  attornment  they  entermarrie,  and  iib!'4Vol.  68. 
then  attornment  is  made,  that  the  husband  and  wife  shall  have  Toker's  case, 
no  moieties  in  this  case  (4),  no  more  than  if  a  charter  of  feoff-  ^'.-  ^°™-  *^■^• 
ment  be  made  to  a  man  and  a  woman,  with  a  letter  of  atturnie     ^^  °  ^  *^*^^' 
to  make  livery,  they  entermarry,  and  then  livery  is  made  secun- 
dum formam  chartce,  in  which  case  it  is  said  that  they  have  no 
moities.     But  certain  it  is,  that  if  a  feoffment  were  made  before 
the  statute  of  27  H.  8.  of  uses  to  the  use  of  a  man  [q"]  and  a  [q]  4  Marise, 
woman,  and  their  heirs,  and  they  entermarry,  and  then  the  sta-  f.^'*''"'  i*^- 
tute  is  made,  if  the  husband  alien  it  is  good  for  a  moity  :  for  the  p  *^r^"i22 
statute  executes  the  possession  according  to  such  qualitie,  man-  29  H.'  8. 
ner,  forme,  and  condition,  as  they  had  in  use,  so  as  though  it  vest  ^y<^r,  32. 
during  the  coverture,  yet  the  act  of  parliament  executes  severall 
moities  in  them,  seeing  they  had  several  moities  in  the  use  (5). 

If  an  estate  be  made  to  a  villeine  and  his  wife  [r]  being  free,  [j-]  40  Ass.  p.  7. 
and  to  their  heires,  albeit  they  have  severall  capacities,  viz.  the 
villeine  to  purchase  for  the  benefit  of  the  lord,  and  the  wife  for 
her  owne,  yet  if  the  lord  of  the  villeine  enter,  and  the  wife  sur- 
viveth  her  husband,  she  shall  injoy  the  whole  land,  because  there 
be  no  moieties  between  them. 

A  man  makes  a  lease  to  A.  and  to  a  baron  and  feme,  viz.  to 
A.  for  life,  to  the  husband  in  taile,  and  to  the  feme  for  yeares, 
in  this  case  it  is  said,  that  each  of  them  hath  a  third  part  in 
respect  of  the  severaltie  of  their  estates. 

If  a  feoffment  be  made  to  a  man  and  a  woman  and  their  heires 
with  warrantie,  [.s]  and  they  entermarrie,  and  after  are  im-  [«]  pi.  Com.  483. 
pleaded  and  vouch  and  recover  in  value,  moities  shall  not  be  ^'iehol's  case, 
between  them;  for  though  they  were  sole  when  the  warrantie 
was  made,  notwithstanding  at  the  time  when  they  recovered 
and  had  execution  they  were  husband  and  wife,  in  which  time 
they  cannot  take  by  moities. 

Albeit 

(2)  See  ace.  as  to  this  difference  between  a  joint  estate  to  husband  and 
wife  before  marriage  and  one  after,  Calthorpe's  Read,  on  C(t[)yh.  92.  F.  N.  B. 
194.  B.  See  further  case  of  Butler  and  Baker,  3  Co.  the  case  of  Margery 
More,  ante,  133.  a.  the  case  of  4  Ass.  4.  cited  in  1  Ilo.  Abr.  271.  and  the  case 
of  Ward  and  Walthew,  Yelv.  101. 

(3)  See  ante  112.  a.  where  the  same  passage  from  Bracton  is  cited. 

(4)  See  ace.  post.  310.  a.  and  there  the  doctrine  is  more  positively  expressed. 
See  further  the  case  of  a  lease  for  life  to  baron  and  feme,  and  afterwards  Con- 
firmation, post.  299.  b. 

(5)  See  Dy.  200  a. 


187.  b.  188.  a.J   Of  Joyntenants.    L.  3.  C.  3.  Sect.  291. 


10  H.  7.  20. 


[«]  11  E.  3. 
Cui  in  vita,  9. 
16  E.  3.  ibid. 
36  E.  3.  ib.  20. 
35  Ass.  pi.  15. 
31  H.  6.  tit.  Ent. 
congeable,  54. 
19  H.  6.  45. 
r.N.B.193.K. 


Vide  Sect.  302. 
(Post.  327.  b.) 


*  Vide  the  sta- 
tute of  32  H.  8.  2. 
It  is  no  discon- 
tinuance at  this 
day. 

[«]Pl.Com.419. 
Bratchbridge's 


Albeit  baron  and  feme  (as  Littleton  here  saith)  be  one  person 
in  law,  so  as  neither  of  them  can  give  any  estate  or  interest  to 
the  other  (6),  yet  if  a  charter  of  feoflfment  be  made  to  the  ■wife, 
the  husband  as  atturney  to  the  feoifor  may  make  liverie  to  the 
wife  (7)  :  and  so  a  feme  covert,  that  hath  power  to  sell  land  by 
will,  may  sell  the  same  to  her  husband,  because  they  are  but  in- 
struments for  others,  and  the  state  passeth  from  the  feoffor  or 
devisor. 

If  a  husband,  wife,  and  a  third  person  purchase  lands  to  them 
and  their  heires,  (t)  and  the  husband  before  the  statute  of  32  H.  8. 
cap.  1,  had  aliened  the  whole  land  to  a  stranger  in  fee,  and  died, 
the  wife  and  the  other  joyntenant  were  joyntenants  of 
the  right,  and  if  the  wife  0^  had  died,  the  other  joyn-  ri88."| 
tenant  should  have  had  the  whole  right  by  survivor  (1),  L  ^-  J 
for  that  they  might  have  joined  in  a  writ  of  right  (2), 
and  the  discontinuance  should  not  have  barred  the  entrie  of  the 
survivor,  for  that  he  claymed  not  under  the  discontinuance,  but 
by  the  title  paramount  above  the  same  by  the  first  feoffment  (3), 
which  is  worthie  of  observation.  But  if  the  husband  had  made 
a  feoffment  in  fee  but  of  the  moity,  and  he  and  his  wife  had 
dyed,  their  moity  should  not  have  survived  to  the  other. 

And  for  the  better  understanding  of  this  diversity  divers  things 
are  worthy  of  observation. 

First,  that  a  right  of  action  and  a  right  of  entrie  may  stand 
in  joynture ;  for  at  the  common  law  the  alienation  of  the  hus- 
band was  a  discontinuance  to  the  wife  of  the  one  moity,  and  a 
disseisin  of  the  other,  so  as  after  the  death  of  the  husband,  the 
wife  hath  a  right  of  action  to  the  one  moity,  and  the  other 
joyntenant  a  right  of  entry  into  the  other,  but  they  are  join- 
tenants  of  the  right,  because  they  may  joyne  in  a  writ  of  right. 

Secondly,  that  a  right  of  action  or  a  bare  right  of  entrie 
cannot  stand  in  joynture  with  a  freehold  or  inheritance  in  pos- 
session, and  therefore  if  the  husband  make  a  feoffment  of  the 
moltie,  this  was  a  discontinuance  of  that  moity,*  and  the  other 
jointenant  remained  in  possession  of  the  freehold  and  inherit- 
ance of  the  other  moity,  which  for  the  time  was  a  severance  of 
the  jointure  (4)  :  and  so  are  all  the  books,  which  seemed  to  varie 
amongst  themselves,  clearly  reconciled. 

If  two  joyntenants  be  of  a  rent,  and  the  one  of  them  disseise 
the  tenant  of  the  land,  \_v'\  this  is  a  severance  of  the  joynture  for  a 
time ;  for  the  moitie  of  the  rent  is  suspended  by  unitie  of  posses- 
sion (5),  and  therefore  cannot  stand  in  joynture  with  the  other 
moitie  in  possession.  And  this  is  to  be  observed,  that  there  shall 
never  be  any  survivor,  unless  the  thing  be  in  joynture  at  the  in- 
stant of  the  death  of  him  that  first  dyeth  (6)  ;  for  the  rule  is,  nihil 
de  re  accrescit  ei,  qui  nihil  in  re  quando  jus  accrescerit  habef. 

Also  if  a  man  demiseth  lands  to  two,  to  have  and  to  hold  to 
the^one  for  life,  and  the   other  for  yeares,  they  are  no  joyn- 
tenants; 


and  observe  note  6,  there. 
58.  D.  pi.  3. 


(6)  Ace.  ante  112.  a 

(7)  Ace.  ante  52.  a. 

(1)  Ace.  2  Ro.  Abr. 

(2)  See  post.  337.  a. 

(3)  See  post.  364.  b.  and  ante  185.  a 

(4)  Ace.  post.  337.  b. 

(5)  See  ante  148.  b. 
(G)  Ace.  post.  193.  a. 


L.  3.  C.  3.  Sect.  291.    Of  Joyntenants.  [188.  a. 

tenants;  for  a  state  of  freehold  cannot  stand  in  joynture  with  46  E.  3.  21. 
a  terme  for  ycares :  and  a  reversion  upon  a  freehold  cannot  stand  }^  H.  6.  45. 
in  joynture  with  a  freehold  and  inheritance  in  possession,  as  3  ^  ^  jq' 
shall  be  said  in  the  next  Chapter  (7).     Neither  can  a  seisin  in 
the  right  of  a  politique  capacity  stand  in  jointure  with  a  seisin 
in  a  natural  capacity,  as  shall  be  said  hereafter  (8). 

If  two  femes  be  joyntly  seised,  and  they  take  barons,  and  the 
barons  joyne  in  an  alienation  and  dye,  the  T,'ivcs  are  joyntenants 
of  the  right,  and  may  joyne  in  a  writ  of  right ;  and  yet  they  may 
have  severall  writs  oi  cuiinvita  at  their  election;  but  when  they 
have  recovered  in  those  severall  writs,  they  shall  be  joyntenants 
againe.  But  if  the  barons  had  aliened  severally,  this  had  been  a 
severance  of  the  joynture  for  a  time,  for  the  reason  abovesaid. 

If  two  joyntenants,  the  one  for  life,  and  the  other  in  fee,  lose 
by  default,  the  one  shall  have  a  writ  of  right,  and  the  other  a 
quod  ei  deforceat ;  and  yet  when  they  have  severally  recovered, 
they  shall  be  joyntenants  againe (9).  So  it  is  if  two  joyntenants 
be  disseised,  and  an  assise  is  brought,  and  the  one  is  summoned 
and  severed,  and  the  other  recover  the  moitie,  and  after  another 
assise  is  brought,  and  he  that  recovereth  *  is  summoned  and 
severed,  and  the  other  recover,  albeit  they  severally  recover,  yet 
they  are  joyntenants  againe (10). 

And    in   all   cases  where   the  joyntenants  pursue  one  joynt  vide  Lit.  cap. 
remedy,  and  the  one   is  summoned  and  severed  and  the  other  Remitter,  the 
recover,  he  that  is  summoned  and  severed  shall  enter  with  him;  (pog^|'3g4,  \^) 
but  where  their  remedies  be  severall,  there   the  one  shall  not  10  H.  6.  lb. 
enter  with  the  other,  till  both  have  recovered :  and  the  same  law  31  H.  6.  tit. 
is  of  coparceners.    If  lands  [w]  be  demised  for  life,  the  remainder  JJk  s.^'lh  b. 
to  the  right  heires  of  /.  S.  and  of  /.  N.     I.  S.  hath  issue  a«d  a  e.  '4.  10. 
dieth,  and  after  I.  N.  hath  issue  and  dieth,  the  issues  are  not  ?,1  ll.&^s.^  ^^ 
joyntenants,  because  the  one  moity  vested  at  one  time,  and  the  lH^  ^  •^•^•^ 
other  moity  vested  at  another  time(ll).      And  yet  in  some  33  e!  3." 
cases  there  may  be  joyntenants,  and  yet  the  estate  may  vest  in  (Cro.  Jam.  259.) 
,,  ,  11  X-       -^  >  J  •'  r^j  17  El.  Dyer, 

them  at  severall  times.  _  Brent's  case (12) 

If  a  man  [x]  make  a  feoffemcnt  in  fee  to  the  use  of  hiraselfe  i  Ld.Raym.sfl. 
and  of  such  wife  as   he  should  afterwards  mavrie,  for  terme  of 
their  lives,  and  after  he  taketh  wife,  they  are  joyntenants,  and 
yet  they  come  to  their  estates  at  severall  times  (13). 

«  "recovereth"  s'^cms  to  be  here  inserted  for  recovered.     See  Jfr.  Ritso'e  Intr.  p.  118. 

And 


(7.)  Post.  Sect.  302.  near  the  end. 
(S)  Post.  Sect.  297. 

(9)  See  post.  214.  a.  and  Bro.  Abr.  Joinfmants,  6. 

^10)  A  like  case  of  parceners  is  stated  before,  and  resolved  in  the  same  way. 
Ante  1G4.  a.     See  further  19  11.  G.  45.  b. 

(11)  For  other  cases  yvhere  Joint  words  are  construed  to  operate  severally  for 
the  like  reason,  sec  the  arguments  in  Mr.  Justice  Windham's  case,  5  Co.  7.  a. 

(12)  It  is  in  Dy.  339.  b.  pi.  48.  but  without  any  name.  It  is  also  much  at 
large  in  2  Leon.  14. 

(13)  Sec  contra  as  to  an  estate  at  common  lair,  the  case  of  a  gift  to  one  and 
his  children,  ante  9.  a.  The  reason  of  the  difference  is,  that  in  the  case  of  the 
use  the  estate  is  vested  and  settled  in  the  feoffees  till  the  future  use  comes  into 
esse.  See  further  as  to  this  difference  and  the  reason  of  it,  1  Co.  100.  b.  101. 
a.  and  Dy.  274.  b.— [Note  72.] 


188.a.&b.l89.a.]  Of  Tenants  in  Common.  L.3.C.4.S.292. 

And  so  it  is  if  I  disseise  one  to  the  use  of  two,  and  the  one 
agrees  at  one  time,  and  the  other  at  another,  yet  they  are  joyn- 
tenants. 

In  this  Section  are  three  Se.  The  first  and  second  are  at 
hirge  explained  before;  the  last  is  intended  where  more  parties 
take  than  three. 


(Noy,  13.) 


b^Chap.  4.  r~T'] 

Of  Tenants  in  Common.     Sect.  292. 


^ENANTS  in  Common  are  they,  which  have  lands  or  tenements  in 
fee  simple,  fee  taile,  or  for  terme  of  life,  ^c.  and  they  have  such 
lands  or  tenements  hy  severall  titles,  and  not  hy  a  joynt  title,  and  none 
of  them  know  of  this  his  severall,  hut  they  ought  hy  the  law  to  occupie 
these  lands  or  tenements  in  common,  and  pro  indiviso  to  take  the  profits 
in  common.  And  hecause  they  come  to  such  lands  or  tenements  hy 
severall  titles,  and  not  hy  one  joynt  title,  and  their  occupation  and  pos- 
session shall  he  hy  law  between  them  in  common,  they  are  called  tenants 
in  common.  As  if  a  man  infeoffe  two  joyntenants  in  fee,  and  the  one 
of  them  alien  that  which  to  him  helongeth  to  another  in  fee,  now  the 
alienee  and  the  other  jointenant  are  tenants  in  common,  hecause  they 
are  in  such  tenements  by  severall  titles,  for  the  alienee  commeth  to  the 
moytie  hy  the  feoffement  of  one  of  the  joyntenants,  and  the  other  joyn- 
tenant  hath  the  other  moitie  hy  force  of  the  first  feoffement  made  to  him 
and  to  his  companion,  ^c.  (1).  And  so  they  are  in  hy  severall  titles, 
that  is  to  say,  hy  several  feoff'ements,  ^c.  (2). 

Fleta,  lib.  3.  T  ITTLETON  having  spoken  of  parceners,  which  are  onely 

cap.  4,  -*^  by  descent,  and  of  joyntenants,  which  are  onely  by  purchase 

and  by  joint  title,  speaketh  now  of  tenants  in  common,  which 
may  be  by  three  means,  viz.  by  purchase,  by  descent,  or  by  pre- 
scription, as  hereafter  in  this  Chapter  shall  appeare(3). 

J8@°-"  Or  for  term  of  life,  &cJ'  Here  &c.  implyeth  ri89."j 
pur  terme  d'auter  vie,  or  for  tearm  of  yeares,  or  for  L  3,.  J 
any  other  fixed  estate  in  the  land. 

And  here  it  appeareth,  that  the  essential  difference  between 
joyntenants  and  tenants  in  common  is,  that  joyntenants  have  the 
lands  by  one  joint  title  and  in  one  right (l)f,  and  tenants  in  com- 
mon by  severall  titles,  or  by  one  title  and  by  severall  rights; 
Vide  Sect.  296.  which  is  the  reason,  that  joyntenants  have  one  joint  freehold,  and 
tenants  in  common  have  severall  freeholds.    Onely  this  propertie 

is 


(1)  No  &c.  in  L.  and  M.  or  Roh. 

(2)  No  &c.  in  L.  and  M.  or  E,oh. 

(3)  See  Sect.  310.  which  gives  an  instance  of  tenancy  in  common  by  pre- 
scription. 

(1)  t  See  post.  299.  b.  the  first  line. 


L.3.  C.  4.  S.293-4-5.  Of  Tenants  in  Common.  [189.  a.  &  b. 

is  common  to  them  both,  viz.  that  their  occupation  is  individed, 
and  neither  of  them  knoweth  his  part  in  severall. 

The  example  tha.t  Littleton  putteth  in  this  Section  is  perspicu- 
ous, and  needeth  no  explication. 


Sect.  293. 


(Ant.  1.  b.) 
11  Co.  38. 


AND  it  is  to  he  understood,  that  ivhen  it  is  said  in  any  hooke  that  a 

man  is  seised  in  fee,  without  more  saying,  it  shall  be  intended  in  fee 

simple;  for  it  shall  not  he  intended  hy  this  word  [in  fee)  that  a  man  is 

seised  in  fee  tayle,  unlesse  there  be  added  to  it  this  addition,  fee  tayle,  ^c. 

THIS  is  evident,  and  secundum  excellentiam  it  shall  be  taken  VUe  Levant, 
for  the  highest  and  best  fee,  and  that  is  fee  simple.  ^^^^  73  a.) 

"  Addition,  fee  tayle,  &c."  Here  is  implyed  a  maxime  in  law, 
viz.  that  additio  probat  minoritatem,  as  it  is  vulgarly  said,  the 
younger  son  giveth  the  difference  (2). 


Sect.  294. 

ALSO,  if  three  joyntenants  he,  and  one  of  them  alien  that  which  to 
him  belongeth  to  another  man  in  fee,  in  this  case  the  alienee  is  tenant 
in  common  with  the  other  two  joyntenants :  but  yet  the  other  two  joyn- 
tenants are  seised  of  the  two  parts  which  remain  (3)  joyntly  (5),  and  of 
these  two  parts  the  survivor  between  them  two  holdeth place,  ^c.  (4). 

THIS  needeth  no  explication,  onely  the  &c.  in  the  end  of  this 
Section  implyeth,  that  the  same  law  is  where  there  be  more 
joyntenants  than  three. 

|-189.J  s^  Sect.  295. 

ALSO,  if  there  be  two  joyntenants  in  fee,  and  the  one  giveth  that  to 

him  belongeth  to  another  in  tayle,  (1)  [and  the  other  giveth  that  to 

him  belongs  to  another  in  taile,']  the  donees  are  tenants  in  common,  Sj-c 

n^HE  &c.  in  the  end  of  this   Section  implyeth,  that  so  it  is  Vide  Sect.  300. 
i-    when  a  lease  for  life  or  pur  auter  vie  is  made,  for  in  that 
case  also  the  lessees  are  tenants  in  common. 

Sect. 


(2)  The  difference  of  arms  is  meant.     See  more  particularly  as  to  this  ant. 
140.  b. 

(3)  which  remain  not  in  L.  and  M.  or  Roh. 

(4)  No  &c.  in  L.  and  M.  or  Roh. 

(5)  See  Sect.  304  &  312. 

(1)  The  words  between  brackets  not  in  L.  and  M.  or  Roh. 


189.  b.  190.  a.J  Of  Tenants  in  Common.  L.  3.  C.  4.  S.  296. 


Sect.  296. 

J^  UT  if  lands  he  given  to  tivo  men,  and  to  the  heires  of  their  two 
bodies  begotten,  the  donees  have  a  joynt  estate  for  tearme  of  their  lives; 
and  if  each  of  them  hath  issue  and  dye,  their  issues  shall  hold  in  com- 
mon, S^c.  But  if  lands  be  given  to  tivo  abbots,  as  to  the  abbot  of  West- 
minster and  to  the  abbot  of  St.  Albans,  to  have  and  to  hold  to  them  and  to 
their  successors,  in  this  ease  they  have  presently  at  the  beginning  an 
estate  in  common,  and  not  a  joynt  estate.  And  the  reason  is,  for  that  every 
abbot  or  other  soveraigne  of  a  house  of  religion,  before  that  he  ivas  made 
abbot  or  soveraign,  ^c.  was  made  but  as  a  dead  person  in  law,  and  when  he 
is  made  abbot  (2),  he  is  as  a  man  personable  in  law  onely  to  purchase  and 
have  lands  or  tenements  or  other  things  to  the  use  of  his  house,  and  not 
to  his  own  proper  use,  as  another  secular  man  may,  and  therefore  at  the 
heginriing  of  their  purchase  they  are  tenants  in  common  ;  and  if  one  of 
them  die,  the  abbot  ivhich  surviveth  shall  not  have  the  whole  by  survivor, 
but  the  successor  of  the  abbot  which  is  dead  shall  hold  the  moiety  in 
common  with  the  abbot  that  surviveth,  ^c. 

"  TF  lands  he  given  to  two  men,  &c."     Of  this  sufficient  hath 
[n]  Sect.  285.         -^  been  spoken  in  the  Chapter  [a]  of  Joyntenants. 

(Adu  182.  &,) 

"  But  if  lands  be  given  to  two  abbots,  &c."     In  this  case  of 
(2  Saund.319.)    the  two  abbots  in  respect  of  their  several  capacities,  albeit  the 
16^ H^'  \\^'h^'  '^*^^'^^  ^^  joyii*^>  y^t  the  law  [6]  doth  adjudge  them  to  be  seve- 
3  11.7.11.'    ■     rally  seised  (3). 
10  E.  4.  16.  b.     5  H.  7.  25.     18  E.  3.  27.     49  E.  3.  25.  b.    (2  Ro.  Abr.  91.  2  Saund.  319.) 

Vide  Sect.  200.  The  d:c.  in  the  end  of  this  Section  implyeth,  that  so  it  is,  if  any 
1 8  E  3  27  If"  W  body  politique  or  corporate,  be  they  regular  as  dead  persons 
in  law  (whereof  our  author  here  speaketh)  or  secular  : 
as  if  JB@*  lands  be  given  to  two  bishops,  to  have  and  to  flOO-T 
hold  to  them  two  and  their  successors :  albeit  the  L  ^'  J 
bishops  were  never  any  dead  persons  in  law,  but  always 
of  capacitie  to  take,  yet  seeing  they  take  this  purchase  in  their 
politique  capacitie,  as  bishops,  they  are  presently  tenants  in  com- 
mon, becaue  they  are  seised  in  severall  rights,  for  the  one  bishop 
is  seised  in  the  right  of  his  bishoprick  of  the  one  moietie,  and  the 

other 


(2)  tfec.  in  L.  and  M.  and  Roh. 

(3)  Here  joint  words  are  construed  to  make  vSeveral  estates  in  respect  of  the 
several  capacities  of  the  donees.  In  a  former  part  vesting  at  several  times  makes 
joint  words  to  operate  severally.  Ant.  88.  a.*  and  Mr.  justice  Wyndham's 
case,  5  Co.  7.  a.  there  cited  in  a  note.  A  few  passages  farther,  lord  Coke  gives 
an  instance  of  joint  words  passing  two  entire  things  to  two  grantees  in  conse- 
(juence  of  the  several  quality  of  the  things  granted.  Post.  190.  the  case  of  a 
corody.  Sec  further  as  to  the  effect  from  several  capacities  in  the  grantees, 
post.  191.  b.  ant.  183.  b.  near  the  end.— [Note  73.] 

*  Wyndham's  cane  in  cited  tn  note  11.  o/18S.  a.  tohirh  it,pr<,hahly,  the  part  meant  tobe 
referred  to,a8fol.  88.  a.  being  tipon  guardianship  in  socage,  is  quite  irrelevant  to  tht  sub- 
ject of  jointenants. 


L.  3.  C.  4.  Sect.  297.  Of  Tenants  in  Common.        [190.  a. 

other  is  seised  in  the  right  of  his  bishoprick  of  the  other  moitie, 

and  so  by  severall  titles  and  in  severall  capacities,  whereas  joyn- 

tenants  ought  to  have  it  in  one  and  the  same  right  and  capa- 

citie,  and  by  one  and  the  same  joynt  title.     The  like  law  is,  if 

lands  be  given   to   two   parsons  and  their  successors  or  to  any  (5  Co.  ^a. 

other  such  like  ecclesiasticall  bodies  politique  or  incorporate,  as  {"Jm'TcS 

hath  been  said. 

If  a  corodie  be  granted  to  two  men  and  their  heires,  in  this 
case,  because  the  corodie  is  inccrtaine  and  cannot  be  severed,^  it 
shall  amount  to  a  severall  grant  to  each  of  them  one  corodie ; 
for  the  persons  be  severall,  and  the  corodie  is  personall(l). 

Sect.  297. 

ALSO,  if  lands  he  given  to  an  abbot  and  a  secular  man,  to  have  and 
to  hold  to  them,  viz.  to  the  abbot  and  his  successors,  and  to  the  secu- 
lar 7nan  to  him  arid  to  his  heires,  they  have  an  estate  in  common,  causa 
qua  supra. 

AND  so  it  is,  if  lands  be  given  to  the  parson  of  Dale  and  to  F.  N.  B.  49. 1, 
a  lay  man,  to  have  and  to  hold  them,  that  is  to  say,  to  the  16  ^•J^^l^'^^'^'^ 
par.son  and  his  successors,  and   to   the   lay  man  and  his  heires,  -^^  ^^g  p[  j  ' 
they  are  presently  tenants  in  common  for  the  causes  abovesaid.  2  R.  3. 16. 
So  of  a  bishop,  &c.     Et  sic  de  similihus.  |.^  jj  g  j^ 

(5  Co'.  8.) 

If  lands  be  given  to  the  king  and  to  a  subject,  to  have  and  to  pi.  Com.  in  seig. 
hold  to  them  and  to   their  heires,  yet  they  are  tenants  in  com-  Barkley's  case, 
mon,  and  not  joyntenants;  for  the   king  is  not   seised  in  his 
naturall  capacitie,  but  in  his  royall  and  politique  capacitie,  m  (Ant.  16.  a.) 
Jure  coronse,  which  cannot  stand  in  joynture  with  the  seisin  of 
the  subject  in  his  naturall  capacitie.     So  likewise  if  there  be  two 
joyntenants,  and  the  crowne  descend  to  one  of  them,  the  joynture 


(1)  Lord  Coke  cites  no  authority  for  this.  But  in  8  E.  4.  17.  there  is  a 
case  which  tends  to  confirm  and  explain  his  doctrine  as  to  a  corody  not  being 
grantable  to  more  than  one.  The  case  arose  on  grant  of  a  corody  by  Hen.  0. 
to  two  and  the  longer  liver,  where  one  was  dead,  the  question  being,  whether 
during  the  life  of  the  survivor  this  was  sufficient  to  justify  the  prior  of  Jris- 
with,  on  whom  the  corody  was  chargeable,  in  refusing  a  new  grantee  sent  by 
Edward  the  fourth.  Upon  this  case  Nele  serjeant  argued  for  the  king,  that 
a  corody  lohich  is  for  one  man  cannot  he  ijloen  to  two,  for  two  men  cannot  have 
the  maintenance  of  one  man;  and  thence  he  inferred  that  the  grant  to  the  two 
was  void.  But  the  judges  distinguished;  for  they  all  said,  that  ij  the  coroiuj 
be  to  have  certain  bread  and  certain  service,  this  may  be  granted  to  ttcenti/ 
men,  &c.  as  to  have  20  breads  or  6  gallons  of  ale,  dx.  but  that  a  corody  to  sit 
every  day  in  the  hall  of  the  prior  and  to  be  served  as  the  men  of  the  prior  are, 
this  cannot  be  granted  to  many,  for  every  one  of  them  woidd  have  as  muck  as 
one  had  heretofore,  ichich  would  not  be  reason,  &c.—l  was  earned  to  this  case 
in  the  year-book  of  E.  4.  by  a  reference  in  Fitzherbert's  Natura  Brevium, 
which  in  the  commentary  on  the  writs  de  corrodio  habendo  et  de  annua  pen- 
sione  contains  a  great  variety  of  learning  on  this  antiquated  subject,  bee  i^. 
N.  B.  230.  F.— [Note  74.] 
Vol.  II.— 6 


190.a.l90.b.]  Of  Tenants  in  Common.  L.3.C.4.S.298-99. 

is  severed  and  they  are  become  tenants  in  common.    But  if  lands 

be  given  to  A.  de  B.  bishop  oi  N.  and  to  a  secular  man,  to  have 

and  to  hold  to  them  two  and  to  their  heires,  in  this  case  they 

are  joyntenants;  for  each  of  them  take  the  lands  in  their  natu- 

rall  capacitie. 

(Post.  310.  b.  If  lands  be  given  to  John  bishop  of  Korv-kh  and  his  succes- 

2  Ro.  Abr.  91.)     gors  and  to  John  Overall  doctor  of  divinity  and  his  heires,  being 

16  11^7^15  ^*     *^^^  ^^^  *^^  same  person,  he  is  tenant  in  common  [r/]  with  him- 

9H.  6. '25. '         selfe.     But  our  author's  rules  do  not  hold   in   chattels  reals  or 

45  E.  3.  25.         personals;  for  if  a  lease  for  ycarcs  be  made  or  a  ward  granted  to 

an  abbot  and  a  secular  man,  or  to  a  bishop  and  a  secular  man, 

or  if  goods  be  granted  to  them,  they  are  joyntenants,  because 

they  take  not  in  their  politique  capacitie  (2). 


s^  Sect.  298.  P^^-] 

A  LSO,  if  lands  he  given  to  two  to  have  and  to  hold,  scil.  the  one  moity 
to  the  one  and  to  his  heires,  and  the  other  moity  to  the  other  and  to 
his  heires,  they  are  tenants  in  common. 

(Cro.  Cha.  75.        A  ND  the  reason  is,  because  they  have  severall  freeholds  and 
Ant.  183.  a.  b.)     XA.  an  occupation  jwo  indivisos. 

Here  is  to  be  observed,  that  the  habendum  doth  sever  the 
(2  Ro.  Abr.  89,  premises  thatpriwia/or^'fi  seemed  to  be  joynt;  for  an  expresse 
90.  Ant.  183.  b.)  gg^^tg  controlls  an  implyed  estate  as  hath  been  said. 


Sect.  299. 

A  LSO,  if  a  man  seised  of  certaine  lands  infeoffe  another  of  the  moitie 
of  the  same  land  without  any  speech  of  assignement  or  limitation  of 
the  same  moity  in  severaltie  at  the  time  of  the  feoffment,  then  the  feoffee 
and  the  feoffor  shall  hold  their  parts  of  the  latid  in  common  (2)t. 

And 


(2)  In  a  former  part  lord  Coke  explains  the  reason  of  this  to  be,  that  no 
chattel  can  go  in  succession  in  the  case  of  a  sole  corporation,  no  more  than  a 
lease  for  years  to  one  and  his  heirs  can  go  to  heirs.  Ant.  46.  b.  But  there 
are  exceptions  to  this  rule.  The  king  is  mentioned  as  one  by  lord  Coke,  ant. 
90.  a.  Another  is,  where  there  is  a  special  custom,  as  the  care*  of  the  cham- 
berlain of  London,  for  orphanage  monies.  Fulwood's  case,  4  Co.  65.  a.  to 
which  add  Arundel's  case.  Hob.  64.  and  ant.  fo.  9.  a.  note  1,  there,  90.  a.  and 
the  case  of  a  bond  to  a  lay  person  and  abbot  in  F.  N.  B.  120.  B. — [Note  75.] 

(1)  In  L.  &  M.  and  Roh.  this  Section  is  placed  immediately  after  Sect.  300. 

(2)  f  Brooke  in  his  Abridgment,  title  Feoffements  de.  Terres,  pi.  75.  cites 
this  Section  of  Littleton,  and  in  support  of  it  refers  to  various  cases  in  Fitzher- 
bert's  Abridgment.  See  further  Bro.  Nouv.  Cas.  154.  124.  6  Co.  1.  and 
Dy.  187.  a.  pi.  5. 

*  "care"  seems  to  he  here  inserted  fur  case. 


L.  3.  C.  4.  Sect.  299.    Of  Tenants  in  Common.    [190.  b. 

\  ND  the  like  law  is,  if  the  feoffment  be  made  of  a  third  part  ii  Ass.  pi.  16. 
■^1-  or  a  fourth  part,  &c.    And  if  there  be  an  advowson  appen-  45  E.  3.  12. 
dant,  they  are  also  tenants  in  common  of  the  advowson  (3).     And 
albeit  it  is  said,  that  such  a  feoffment  of  a  moitie  or  third  part,  21  E.  4.  22.  b. 
&c.  is  not  good  without  writing,  for  that  (as  they  say)  a  man 
cannot  create  an  uncertainc  estate  in  land  by  parol ;  yet  is  the 
law  clear,  that  such  a  feoff'mcnt  is  good  by  parol  without  writ- 
ing, and  such  an  uncertaine  estate  shall  passe  by  livery,  and  so 
it  appeareth  in  our  bookes. 

If  a  verdict  finde,  that  a  man  hath  dnas  jiartcs  manerii,  &c.  in 
tresjyarle^  diinsm,  this  shall  not  be  intended  to  be  in  common;  but  21  E.  4.  22.  b. 
if  the  verdict  be  in  tresjyirtrs  dividendas,  then  it  seemeth  that  they  rp^^^  '  j^ '  ^ 
are  tenants  in  common  by  the  intendment  of  the  verdict  (4).  Feoffments,  115. 

But  if  a  man  be  seised  of  a  mannor  whereunto  an  advowson  34  E.  1.  Quar. 
is  appendant,  and  maketh  a  feoff"ment  of  three  acres  parcell  of  j^^'^j'?^  Dyer 28 
the  mannor  together  with  the  advowson  to  two,  to  have  and  to  22  E.  3.6. 
hold  the  one  moity  together  with  the  moitie  of  the  advowson  Feoffments,  116. 
to  the  one  and  his  heires,  and  the  other  moity  together  with  the  39^^ '^3 ^,38 
other  moity  of  the  advowson  to  the  other  and  his  heires,  this  9  e.  3.  i'b.  " 
cannot  be  good  without  deed;  for  the  feoffor  cannot  annex  the  17  E.  3.  3. 
advowson  to  these  three  acres,  and  disannex  it  from  the  rest  of  ]l  ^•^■^^• 
the  mannor,  without  deed  (o).  33  H.g.  5.  a. 

(Post.  333.  b.     Cro.  Cha.  473.     Cro.  Jam.  15.)    23  Ass.  8. 

Sect. 

(3)  See  post.  307.  a. 

(4)  In  a  case  in  the  king's  bench  during  lord  Holt's  time,  the  question  was, 
how  the  surrender  of  a  copyhold  to  the  use  of  three  sons  and  two  daughters 
equal///  to  be  divided  and  their  respective  heirs  ought  to  be  construed ;  and  this 
passage  of  the  Coke  upon  Littleton  was  much  relied  upon  by  two  of  the  judges 
as  an  authority  to  show,  that  the  words  eqnalli/  to  he  divided  imply  a  tenancy 
in  common.  But  lord  llolt,  who  was  for  ixjointenancy,  observed,  that  no  such 
matter  appears  in  the  case  of  21  E.  4,  here  cited  by  lord  Coke  in  the  margin  as 
his  authority,  and  that  he  was  not  positive  therein,  but  only  wrote  it  as  his  con- 
jecture. 1  P.  Wms.  19,  in  the  case  of  Fisher  v.  Wigg,  which  is  also  reported  in 
Salk.  391.  Com.  88.  92.  12  Mod.  296.  and  1  Ld.  Raym.  622.  In  the  two  latter 
books  and  in  P.  Williams  this  case  is  reported  very  much  at  large;  and  as  the 
arguments  on  each  side  are  very  elaborate,  it  is  an  authority  fit  to  be  resorted 
to,  wherever  the  doubt  is,  whether  there  shall  be  a  tenancy  in  common  or  join- 
tenancy.  See  also  the  case  of  the  Earl  of  Anglesea  v.  Ram,  in  Dom.  Proc.  Sept. 
1727.  Barker  v.  Gyles,  2  P.  W.  280.  and  3  Bro.  P.  C.  297.  Hall  v.  Digby  and 
others,  4  Bro.  P.  C.  224.  Hawes  v.  Hawes,  1  Wils.  165,  and  Gaskinv.  Gaskin, 
jNI.  18  G.  3.  B.  11.  in  Mr.  Henry  Cowper's  Rep.  just  published.  In  this  last 
case  the  word  e(jwdly  was  deemed  sufficient  to  create  a  tenancy  in  common  in 
a  will;  and  lord  Mansfield  declared  the  opinion  of  the  two  judges  who  differed 
from  Holt  to  be  the  better  and  more  liberal  one  ;  and  Mr.  justice  Aston  noticed, 
that  equally  to  he  divided  had  been  adjudged  a  tenancy  in  common  even  in 
a  deed.  I  am  happy  in  having  this  early  opportunity  of  citing  a  collection  of 
Reports,  which  promises  so  much  new  and  useful  information  to  the  Profession. 
See  further  as  to  the  words  sufficient  to  make  a  tenancy  in  common,  particu- 
larly the  cases  in  equity  on  the  subject,  2  Com.  Dig.  175.  and  Continuation* 
to  the  same  work,  201 .  2  Bro.  C.  C.  233.— [Note  76.] 

As  to  tenancy  in  common  or  jointenancy  of  personal  estate,  more  particu- 
larly see  1  Atk.  495.  2  Bro.  C  C.  220.  6  Joddrell's  MS.  R.  169.  3  Bro. 
C.  C.  215.  324.     3  Ves.  628.     1  Taun.  234. 

(5)  Besides  the  references  in  the  margin,  se  Dy.  48.  b.  pi.  3  and  Doddridge 
on  Advowsons,  30. 

«■  In  the  editions  sithseqnent  to  that  cited  J,y  Mr.  Ilargrave  the  "  Continuation"  here 
mentioned  is  incorporated  into  the  original  work. 


19a  b.  191.  a.]  Of  Tenants  in  Common.  L.  3.  C.  4.  S.  300. 


Sect.  300. 

A  ND  it  is  to  he  understood^  that  in  the  same  manner  as  is  aforesaid 
of  tenants  in  common,  of  lands  or  tenements  in  fee 
simple,  or  in  fee  taile,  in  the  same  0:5"  manner  may  it  he  [191.1 
of  tenants  for  terme  of  life.  As  if  two  joyntenants  he  in  fee,  L  a.  J 
and  the  one  letteth  to  one  man  that  which  to  him  helo7ige.thfor  See  Note. 
terme  of  life,  and  the  other  joyntenant  letteth  that  which  to  him 
helongeth  to  another  for  term  of  life,  ^c.  the  said  two  lessees  are  tenants 
in  common  for  their  lives,  ^c. 

Vide  Sect.  295,  whore  this  is  sufficiently  explained  befoi-e. 

[191.  a.]  At  this  page  Mr.  BUTLER'S  Notes  commence. 
IN  the  concluding  paragraph  of  the  preface  to  the  13th  edition  of  this  work, 
the  present  Editor  requested  the  attention  of  the  public,  to  the  circumstances, 
under  which  he  engaged  in  it :  with  a  renewal  of  the  same  request,  he  now 
presents  the  Reader  with  the  following  Attemjyt  to  complete  Mr.  Hargraves 
Annotation  on  Feuds,  at  the  beginning  of  the  Second  Book.  In  doing  this, 
he  will  endeavour, 

I.  To  give  a  succinct  account  of  the  different  nations,  by  whom  they 
were  established : 

II.  A  succinct  account  of  their  nature,  and  particularly  of  those  peculiar 
marks  and  qualities,  which  distinguish  them  from  other  laws  : 

III.  Some  account  of  the  principal  written  documents,  which  are  the 
sources,  from  which  the  learning  respecting  them  is  derived  : 

IV.  Some  account  of  the  principal  events,  in  the  early  history  of  the 
feuds  of  foreign  countries  : 

V.  Some  account  of  the  States-General,  Parliaments  and  Nobility  of  the 
nations  on  the  Continent,  in  which  the  feudal  policy  has  been  esta- 
blished ;  and  of  the  difference  between  the  Parliament  and  Nobility  of 
those  nations,  and  the  Parliament  and  Nobility  of  England  : 

VI.  And  an  historical  view  of  the  revolutions  of  the  feud  in  England. 
But,  as  his  researches  are  intended  merely  by  way  of  supplemental  anno- 
tation on  Littleton,  and,  as  the  work  of  that  author  treats  of  real  property 
only,  his  observations  will  be  principally  directed,  through  every  branch  of 
his  inquiry,  to  the  influence  of  the  feudal  law  on  that  species  of  property. 
But  this,  he  means,  should  be  particularly  the  case,  when  he  treats  of  the 
feudal  jurisprudence  of  England.  Under  that  head  he  will  offer  some  general 
observations. 

(1st,)  On  the  time  when  feuds  may  be  supposed  to  have  been  first  esta- 
blished in  England ;  (2dly),  On  the  fruits  and  incidents  of  the  feudal  tenure ; 
and,  (3dly,)  On  the  feudal  policy  of  this  country,  with  respect  to  the  inhe- 
ritance and  alienation  of  laud  :  Under  this  head  he  will  attempt  to  state  the 
principal  points  of  difference  between  the  Roman  and  Feudal  Jurisprudence, 
in  the  articles  of  heirship.  (4thly,)  The  order  of  succession,  and,  (5thly,)  the 
absolute  and  unqualified  property  of  the  subject  of  the  civil  law,  and  the  limited 
and  qualified  property  of  the  feudal  tenant,  in  their  respective  possessions. 
(Gthly,)  He  will  then  attempt  to  show  the  means,  by  which  some  of  the 
•■•eneral  restraints  upon  the  alienation  of  real  property,  introduced  by  the 
feud,  have  been  removed.  (7thly,)  He  will  treat  of  entails.  (8thly,)  He  will 
endeavour  to  show  the  means  by  which  the  restraints  created  by  entails  were 
eluded  or  removed.   Having  thus  treated  of  that  species  of  alienation,  which, 

beincr 


I 


i 


L.  3.  C.  4.  Sect.  300.  Of  Tenants  in  Common.      [191.  a. 

being  the  act  of  the  party  himself,  is  termed  voluntary  alienation  :  (9thly,)  He 
will  afterwards  treat  of  that  species  of  alienation,  which  being  forced  on  the 
party,  is  termed  involuntary.  Under  this  head  he  will  briefly  consider  the 
attachment  of  lands  for  debt;  first,  in  regard  to  its  effect  upon  them,  while 
they  continue  in  the  possession  of  the  party  himself;  then  in  regard  to  its  effect 
upon  them,  when  in  the  possession  of  the  heir  or  devisee;  and  afterwards,  in 
regard  to  the  prerogative  remedies  for  the  recovery  of  crown  debts.  (lOthly), 
He  will  then  offer  some  observ;.tions  on  testamentary  alienation;  and  (llthly), 
conclude  by  a  detail  of  some  of  the  principal  circumstances  in  the  history  of 
the  decline  and  fall  of  the  feud  in  this  country. 

I.  The  feudal  law  was  established  by  the  nations  which  overturned 
the  Koman  empire.  The  first  of  these  were  the  Vandals,  the  Suevi,  and  the 
Alani.  They  inhabited  the  countries  bordering  on  the  Baltic.  About  the 
year  406,  they  made  an  irruption  into  Graul;  from  Gaul,  they  advanced  into 
Spain;  about  the  year  415,  they  were  driven  from  Spain  by  the  Visigoths,  and 
invaded  Africa,  where  they  formed  a  kingdom.  About  the  year  431,  the 
Franks,  the  Allemanni,  and  the  Burgundians,  penetrated  into  Gaul.  Of  these 
nations,  the  Franks  became  the  most  powerful;  and  having  either  subdued  or 
expelled  the  others,  made  themselves  masters  of  the  whole  of  those  extensive 
provinces,  which,  from  them,  received  the  name  of  France.  Pannonia  and 
Illyricum,  were  conquered  by  the  Huns;  Bhaetia,  Noricum  and  Vindelieia,  by 
the  Ostrogoths;  and  these  were,  some  time  after,  conquered  by  the  Franks. 
In  449,  the  Saxons  invaded  Great  Britain.  The  Herulians  marched  into  Italy, 
under  the  command  of  their  king  Odoaeer,  and  in  476,  overturned  the  empire 
of  the  West.  From  Italy,  in  493,  they  were  expelled  by  the  Ostrogoths. 
About  the  year  568,  the  Lombards  issuing  from  the  Mark  of  Brandenburgh, 
invaded  the  Higher  Italy,  and  founded  an  empire,  called  the  kingdom  of  the 
Lombards.  After  this,  little  remained  in  Europe  of  the  Boman  empire,  besides 
the  Middle  and  Inferior  Italy.  These,  on  the  final  division  of  that  empire, 
between  the  sons  of  Theodosius,  in  895,  had  fallen  to  the  share  of  the  emperor 
of  the  East,  who  governed  them  by  an  officer  called  the  exarch,  whose  resi- 
dence was  fixed  at  Ravenna,  and  by  some  subordinate  officers,  called  dukes. 
In  743,  the  exarchate  of  Baveuna,  and  all  the  remaining  possessions  of  the 
emperor  in  Italy,  were  conquered  by  the  Lombards.  This,  as  it  was  the  final 
extinction  of  the  Roman  empire  in  Europe,  was  the  completion,  in  that  quarter 
of  the  globe,  of  those  conquests  which  established  the  law  of  the  feud. 

The  nations  by  whom  these  conquests  were  made,  came,  it  is  evident,  from 
different  countries,  at  different  periods,  spoke  different  languages,  and  were 
under  the  command  of  separate  leaders;  yet  they  appear  to  have  established, 
in  almost  every  state,  where  their  polity  prevailed,  nearly  the  same  system  of 
laws.     This  system  is  known  by  the  appellation  of  the  feudal  law. 

II.  Sir  Henry  Spclman,  after  Cujus,  defines  a  fief  to  be,  "A  right  which 
"the  vassal  hath  in  land,  or  some  immovable  thing  of  his  lord's,  to  use  the 
''same,  and  take  the  profits  thereof,  hereditarily,  rendering  unto  his  lord  such 
"feudal  duties  and  services,  as  belong  to  military  tenure;  the  mere  propriety 
"of  the  soil  always  remaining  to  the  lord."  This  definition  appears  accurate 
and  comprehensive :  and  an  analysis  of  it  may  point  out  those  peculiar  and 

CHARACTERISTIC  MARKS,  WHICH  DISTINGUISH  THE  FEUDAL  LAW  FROM  EVERY 
OTHER. 

1st,  \Yhere  the  soil,  and  the  right  to  the  2>rofit3  of  the  soil,  meet  in  the  same 
person,  he  may  be  said  to  have  an  absolute  and  unmixed  estate  in  his  lands. 
This  absolute  and  unmixed  estate,  the  subject  of  every  kingdom,  not  governed 
by  the  feudal  polity,  so  far  as  respects  the  relation  between  sovereign  and  sub- 
ject, appears  to  possess.  But,  by  the  feudal  law,  with  respect  to  the  relation 
between  the  sovereign  and  the  subject,  the  right  to  the  soil  and  the  right  to 

the 


191.  a.]       Of  Tenants  in  Common.  L.  3.  C.  4.  Sect.  300. 

the  profits  of  the  soil,  were  separate;  the  tenant  being  invested  with  the  latter, 
the  sovereign  continuing  to  be  entitled  to  the  former.  This  right  to  the  profits 
was  of  the  most  extensive  nature;  it  gave  the  tenant,  except  for  the  purpose  of 
alienation,  the  complete  power  or  dominion  over  the  land,  during  the  term  of 
his  tenure.  Thus  his  estate  and  interest,  as  to  the  right  of  ownership,  far  ex- 
ceeded that  of  the  usufructuary  in  the  civil  law,  to  which  it  has  sometimes  been 
compared,  as  the  usufructuary  had  a  mere  right  to  the  ordinary  profits  of  the 
usufruct,  and  was  not  permitted  to  make  any  change  in  it,  even  for  its  ameliora- 
tion. It  approached  nearer  to  the  estate  of  the  emphyteuta,  in  the  same  law,  as 
the  Dominium  directum  was  absolutely  vested  in  him.  It  approached,  per- 
haps, still  nearer  to  the  estate  of  a  cestui  que  trust  in  the  actual  law  of  England, 
which  has  been  termed  a  feudal  idea,  grafted  on  lioman  jurisprudence.  The 
precise  nature  of  it,  is  no  where,  perhaps,  better  explained,  than  in  lord  Stair's 
Institutes.  "It  is,"  says  his  lordship,  ''essential  to  a  fee,  and  common  to  all 
"kinds  thereof,  that  there  must  remain  a  right  in  the  superior,  which  is  called 
" Dominium  directum,  fxnd  withal  a  right  in  the  vassal,  called  Dominium  utile: 
"the  reason  of  this  distinction,  and  terms  thereof,  is,  because  it  can  hardly  be 
"determined,  that  the  right  of  properiy  is  either  in  the  superior  or  vassal  alone, 
"so  that  the  other  should  only  have  a  servitude  upon  it;  though  some  have 
"thought  superiority  but  a  servitude,  to  wit,  the  perpetual  use  and  fruit;  yet 
"the  conciliation  and  satisfaction  of  both  have  been  well  found  out  in  this  dis- 
"tinction,  whereby  neither's  interest  is  called  a  servitude;  but  by  the  resem- 
"blance  of  this  distinction  in  law  between /wra  et  actiones  directse,  and  those, 
"which  for  resemblance,  were  reductive  thereto,  and  therefore  called  utiles,  the 
"superior's  right  is  called  Dominium  directum,  and  the  vassal's  Dominium 
'■^  utile,  and  without  these  the  right  cannot  consist."  This  right  in  the  vassal 
to  the  use  and  profits  of  the  land,  while  the  direct  dominion  of  the  land  re- 
mained in  the  lord,  was,  with  respect  to  the  relation  between  the  sovereign  and 
the  subject,  a  new  and  original  point  of  connection,  and  one  of  those  marks 
which  distinguish  the  feudal  from  every  other  law. 

2.  Another  of  these  marks,  is,  that  immovable  or  real  property  only,  was 
admitted  to  he  held  in  feudality,  or  in  other  loords,  to  he  the  substance  of  a  fief  . 
Wherever  the  conquerors  we  speak  of  established  themselves,  they  seized 
whatever  they  desired,  of  the  property  of  the  conquered,  and  the  general 
allotted  it  to  the  superior  officers  of  the  army,  and  these  again  divided  it,  iu 
smaller  parcels,  among  the  inferior  officers.  The  moveable,  as  well  as  the 
immovable,  property  of  the  conquered,  was  seized  and  divided  by  the  con- 
querors; but  moveable  property,  from  its  fluctuating  and  perishable  nature, 
was  ill  calculated  to  serve,  either  as  the  sign,  or  the  subject,  of  a  perma- 
nent connection.  This  was  particularly  the  case  in  those  days,  when  it  had 
in  no  point  of  view  acquired,  or  was  considered  susceptible  of  those  arti- 
ficial modifications,  or  other  durable  qualities,  in  the  intendment  of  law, 
which  it  now  possesses.  Land,  therefore,  or  immovable  property,  alone, 
became  the  subject  of  feudal  tenure.  As  the  notions  of  men  respecting 
property  increased,  the  modifications  of  it  were  also  multiplied,  and  all 
of  them  were  considered  as  susceptible  of  feudality.  Thus  every  species 
of  right  or  servitude,  to  which  land  is  subject,  was  given  in  fee.  At  an 
early  period  of  the  feudal  law,  we  find  mention  of  fiefs  de  camera  and 
cavena.  The  former  was  a  pension  granted  by  the  lord  to  be  paid  out  of 
his  treasury;  the  latter  was  a  quantity  of  corn,  or  other  grain,  granted  by 
the  lord,  to  be  delivered  out  of  his  granary.  In  progress  of  time,  money 
charged  upon  land  was,  in  some  countries,  held  to  be  feudal;  and  even  mere 
money  was,  at  last,  in  some  countries,  held  by  the  feudal  obligation,  and 
treated  as  a  fief.  Whether  money  thus  held  be,  strictly  speaking,  a  fief,  has 
been  the  subject  of  much  discussion.  Thomasius,  whose  writings,  in  the 
course  of  this  inquiry,  have  been  found  highly  valuable,  treats  a  pecuniary 
feud  as  a  chimera,  and  seems  inclined   to  doubt  its  existence.     Sir  Thomas 

Craig 


L.  3.  C.  4.  Sect.  300.    Of  Tenants  in  Common.     [191.  a. 

Craig  thus  expresses  himself  on  this  question.  "The  dominium  directum  of 
'^  a  fief  must  necessarily  remain  in  the  lord  ;  the  domimum  uU'h  must  ncccs- 
"  sarily  be  granted  to  the  feudatory.  When  the  dominium  utile  of  a  movc- 
"  able  is  granted,  the  profits  of  it  must  necessarily  belong  to  the  usufructuary. 
"  But  the  profits  of  a  moveable  proceed  from  the  use  which  is  made  of  it. 
''  Now  the  use  which  is  made  of  a  moveable,  either  consumes  it  or  not.  In 
"  the  first  case,  the  fief  is  necessarily  extinguished;  for  it  is  impossible  that  a 
"  moveable  in  continual  use  should  not,  by  that  very  use  of  it,  be  consumed, 
"  and  the  lord  thereby  deprived  of  it,  without  any  fault  on  his  part,  against 
"  his  will,  and  even  without  his  knowledge.  But  if  the  moveable  be  not  con- 
"  sumed  by  use,  but  may  be  preserved,  the  vassal  has  no  profit  from  it.  I 
"  know  many  writers  of  great  authority  hold,  that  there  may  be  a  fief  of 
"  moveables,  by  way  of  analogy  to  an  usufruct  of  those  things  which  are  con- 
"  sumed  by  use,  where  the  fruit  and  the  profits  belong  to  the  vassal,  the  pro- 
"  priety  remains  with  the  lord.  But  in  this  case,  the  propriety  (to  use  the 
"  expression,)  is  not  of  the  individual  thing,  but  of  a  thing  of  the  same  genus 
"  or  species.  And  therefore  Cujas  justly  observes,  that  properly  speaking, 
"  these  are  not  fiefs.  For  natural  reason  cannot  be  altered  by  civil  power. 
"  We  are  therefore  of  opinion,  that  there  cannot  be  a  fief,  though  there  may 
"  be  a  quasi  fief  of  a  moveable.  But  even  a  quasi,  fief  is  not  allowed  by  the 
"  law  of  Scotland.  For  though  stipulations  are  frequent  amongst  us,  that,  for 
"  the  use  of  money,  a  certain  yearly  sum,  or  a  certain  quantity  of  grain  be 
"  allowed,  yet  this  should  not  be  honoured  with  the  name  of  fief,  as  he  to  whom 
"  the  payment  is  to  be  made  can  never  be  said  to  die  seised  of  the  fee  of  that 
"  money."  But  at  the  first  establishment  of  fiefs,  land  or  immovable  property, 
in  the  narrowest  sense  of  that  word,  was  the  subject  of  a  fief.  That  this  spe- 
cies of  property,  to  the  utter  exclusion  of  every  species  of  moveables,  should 
be  a  point  of  connection  between  the  sovereign  and  the  subject,  is  another  dis- 
tinctive mark  of  feudality.  To  this  it  is  owing,  that  while  in  this  country,  and 
in  every  other  country  whose  jurisprudence  is  of  a  feudal  extraction,  the  differ- 
ence between  real  and  personal,  or  immovable  and  moveable  property,  is  so 
strongly  marked,  and  the  legal  qualities  and  incidents  of  the  two  species  of 
property,  are,  in  so  many  important  consequences,  utterly  dissimilar,  the  dis- 
tinction between  them  in  the  civil  law,  except  in  the  term  of  prescription,  is 
seldom  discoverable. 

3.  The  remaining  point  of  difference  between  the  feudal  polity  and  the  polity 
of  other  states  is,  the  nature  of  the  relation  between  the  chief  and  the  vassals. 
This  is  particularly  distinguishable  by  six  circumstances  :  Istly,  The  relation 
between  them  was  purely  of  a  military  nature;  2dly,  Behind  the  sovereign  and 
his  immediate  feudatories  there  followed  a  numerous  train  of  arrere  vassals, 
or  sub-feudatories,  between  whom  and  the  first  or  immediate  feudatory  there 
subsisted  a  relation  nearly  similar  to  that  between  him  and  the  first  or  chief 
lord;  3dly,  This  relation  was  territorial,  and  was  not  considered  to  arise  from 
the  general  allegiance  due  from  a  subject  to  a  sovereign,  but  from  an  implied 
obligation  supposed  to  be  annexed  to  the  tenure  of  the  fee ;  4thly,  The  right 
of  administering  justice  was  an  appendage  of  this  military  relation,  and 
originally  commensurate  to  it  in  its  territorial  extent ;  5thly,  The  lord  was  not 
allowed  to  alien  the  fee  without  his  tenant's  consent,  nor  the  tenant,  without 
the  consent  of  his  lord;  and  Gthly,  Though  in  point  of  dignity,  of  rank,  and 
of  honour,  the  lord,  according  to  the  ideas  of  those  times,  enjoyed  a  splendid 
pre-eminence  over  his  vassals,  his  power  over  them  was,  comparatively  speak- 
ing, extremely  small.  Thus,  therefore,  the  supposed  preservation  of  the 
dominium  directum,  or  real  ownership,  to  the  lord,  after  he  had  parted  with 
the  beneficial  ownership,  or  dominium  utile,  to  the  tenant;  the  exclusion  of 
moveable  property,  from  serving  either  as  the  sign  or  the  subject  of  the  relation 
between  the  sovereign  and  the  feudatory;  and  the  military  nature  of  this 
relation,  including  in  it  the  other  circumstances  before  noticed,  should  be  con- 
sidered as  three  principal  points  which  distinguish  the  law  of  feuds  from  every 
^  other 


191.  a.]  Of  Tenants  in  Common.    L.  3.  C.  4.  Sect.  300. 

other  law.  To  these  the  book  of  fiefs,  and  Cujas,  and  after  them  sir  Henry 
Spelman,  add  the  hereditary  nature  of  fiefs  ;  and  it  is  observable,  that  Littleton 
in  his  explanation  of  the  word  fee,  says  it  is  the  same  as  inheritance,  without 
adverting  to  any  other  quality  of  a  fief.  But,  as  fiefs  were  not  allowed  to  go 
in  a  course  of  descent,  till  after  a  considerable  period  of  time,  from  their  first 
introduction,  and,  as  they  might  always  be  granted  for  a  less  estate,  than^  an 
estate  of  inheritance,  there  seems  to  be  no  reason  to  suppose  this  descendible 
quality  is  essential  to  their  nature.     We  have  therefore  omitted  it. 

Besides  these,  (which  may  be  considered  as  the  essentials  of  a  fief,)  there  are 
qualities,  which  every  fief  should  possess,  to  answer  the  notions  originally 
entertained  of  this  species  of  property.  Thus,  fiefs  should  be  granted  without 
price;  to  persons  duly  qualified  ;  and  the  services  should  not  be  fixed  to  any 
particular  mode  or  time  of  service.  A  fief  possessing  the  essential  and  secon- 
dary qualities,  we  have  noticed,  was  considered  to  be  a  proj)er  fief.  The  absence 
of  any  of  the  qualities,  reckoned  essential,  necessarily  precluded  the  feudal 
tenure.  But  any,  or  all  of  the  qualities  reckoned  merely  proper,  might  be 
dispensed  with,  at  the  discretion  of  the  parties,  without  precluding  the  tenure, 
according  to  the  maxim.  Modus  et  conventio  vincunt  legem.  This  introduced 
the  distinction  between  proper  and  improper  fiefs.  But,  wherever  the  feudal 
tenure  was  admitted,  the  fief  was  presumed  to  be  a  proper  fief,  till  the  contrary 
was  shown,  and  it  could  only  be  shown  by  referring  to  the  original  investiture. 
Thence  the  maxim,  in  these  cases.  Tenor  investiturce  est  mspiciendus. 

III.  With  respect  to  the  PRINCIPAL  WRITTEN  DOCUMENTS,  WHICH 
ARE  THE  SOURCES  FROM  WHICH  THE  LEARNING  OF  FOREIGN 
FEUDS  IS  DERIVED.  These  may  be  divided  into  CODES  OF  LA  ]yS, 
CAPITULARIES,  AND  COLLECTIONS  OF  CUSTOMS.  It  was  long 
after  the  first  revival  of  letters  in  Europe,  that  the  learned  engaged  in  the  study 
of  the  laws  or  antiquities  of  modern  nations.  When  their  curiosity  was  first 
directed  to  them,  the  barbarous  style  in  which  they  are  written,  and  the  rough 
and  inartificial  state  of  manners  they  represent,  were  so  shocking  to  their  classi- 
cal prejudices,  that  they  appear  to  have  turned  from  them  in  disgust  and  con- 
tempt. In  time,  however,  they  became  sensible  of  their  importance.  They 
were  led  to  the  study  of  them,  by  those  treatises  on  the  feudal  laws,  which  are 
generally  printed  at  the  end  of  the  Justinianean  collection.  These  are  of  Lom- 
bard extraction.  This  naturally  gave  rise  to  the  opinion,  that,  fiefs  appeared 
first  in  Italy,  and  were  introduced  there  by  the  Lombards.  From  Italy,  tlie  study 
of  jurisprudence  was  imported  into  Germany  :  this  opinion  accompanied  it  there. 
At  first  it  appears  to  have  universally  prevailed.  But,  when  a  more  extensive 
knowledge  of  the  antiquities  of  the  German  nations  was  obtained,  there  ap- 
peared reason  to  call  it  in  question.  Many  thought  the  claims  of  other  nations, 
to  the  honour  of  having  introduced  the  feudal  polity,  were  better  founded. 
Some  ascribed  them  to  the  Franks;  others,  denying  the  exclusive  claim  of  any 
nation  in  particular,  ascribed  them  to  the  German  tribes  in  general ;  and  as- 
serted, that  the  outline  of  the  law  of  feuds  is  clearly  discoverable  in  the  habits, 
manners,  and  laws  of  those  nations,  whilst  still  inhabitants  of  the  Hercynian 
wood.  The  time  when  feuds  first  made  their  appearance,  has  equally  been  a 
subject  of  controversy.  The  icord  itself  is  not  to  be  found  in  any  public  docu- 
ment, of  acknowledged  authenticity,  before  the  11th  century. 

III.  1.  The  most  ancient,  and  one  of  the  most  important  CODES  OF  LA  W, 
in  use  among  the  feudal  nations,  is  the  Salic  laiv.  It  is  thought  to  derive  its 
appellation  from  the  Salians,  who  inhabited  the  country  from  the  Leser  to  the 
Carbonarian  wood,  in  the  confines  of  Brabant  and  Hainault.  It  was  written, 
probably  in  the  Latin  language,  about  the  beginning  of  the  5th  century,  by 
Wesogastus,  Bodogastus,  Salogastus,  and  Windogastus,  the  chiefs  of  the  nation. 
It  rec'eived  considerable  additions  from  Clovis,  Childebert,  Clotaire,  Charle- 
magne, and  Lewis  the  Debonnaire.  There  are  two  editions  of  it.  These 
diflfer  so  considerably,  that  they  have  been  treated  as  distinct  codes.     The 

Franks 


L.  3.  C.  4.  Sect.  300.    Of  Tenant  in  Common.      [191.  a. 

Franks  who  occupied  the  country  upon  the  Rhine,  the  Meuse  and  the  Scheldt, 
were  known  by  the  name  of  the  Ripuarians,  and  were  governed  by  a  collection 
of  laws,  which,  from  them,  was  called  the  Ripuarkm  Jaw.  These  laws  seem  to 
have  been  first  promulgated  by  Theodoric,  and  to  have  been  augmented  by 
Dagobert.  The  punishments  inflicted  by  the  Ripuarian  law  are  more  severe 
than  the  punishments  inflicted  by  the  Salic ;  and  the  Ripuarian  law  mentions 
the  trial  by  judgment  of  God,  and  by  duel.  Theodoric  also  appears  to  have 
first  promulgated  the  law  of  t)ie  Ahmanni.  The  law  of  the  Bunjundians  is 
supposed  to  have  been  promulgated  about  the  beginning  of  the  5th  century  ; 
that  nation  occupied  the  country  which  extends  itself  from  Alsace  to  the 
Mediterranean  between  the  Rhone  and  the  Alps.  This  was  the  most  flourish- 
ing of  the  Gallic  provinces  invaded  by  the  Germans ;  thty  established  them- 
selves in  it,  with  the  consent  of  the  emperor  Honorius.  An  alliance  subsisted, 
for  a  considerable  time,  between  them  and  the  Romans;  and  seme  parts  of 
their  law  appear  to  be  taken  from  the  Roman  law.  One  of  the  most  ancient 
of  the  German  codes  is  that,  by  which  the  Ai\(jUones  and  the  Wcrini  were 
governed.  The  territories  of  these  nations  were  contiguous  to  those  of  the 
Saxons;  and  the  Angliones  are  generally  supposed  to  be  the  nation,  known 
in  our  history  by  the  name  of  the  Angles.  A  considerable  portion  of  the 
law  of  the  Saxons  has  reached  us.  The  Goths  &ho  had  their  laws,  which  were 
promulgated  by  the  Ostrogoths,  in  Italy;  by  the  Visigoths,  in  Spain.  The 
Goths  were  dispossessed  of  their  conquests  in  Italy  by  the  Lombards.  No 
ancient  code  of  law  is  more  famous  than  the  laio  of  the  Lombards  ;  none  dis- 
covers more  evident  traces  of  the  feudal  polity.  It  survived  the  destruction 
of  that  empire  by  Charlemagne,  and  is  said  to  be  in  force,  even  now  in  some 
cities  of  Italy.  These  were  the  principal  laws,  which  the  foreign  nations, 
from  whom  the  modern  governments  of  Europe  date  their  origin,  first  estab- 
lished, in  those  countries,  in  which  they  formed  their  respective  settlements. 
Some  degree  of  analogy  may  be  discovered  between  them,  and  the  general 
customs,  which,  from  the  accounts  of  Caesar  and  Tacitus,  we  learn  to  have 
prevailed  among  them,  in  their  supposed  aboriginal  state.  A  considerable  part 
also  of  them  is  evidently  borrowed  from  the  Roman  law,  by  which,  in  this 
instance,  we  must  understand  the  Theodosian  code.  This  was  the  more 
natural,  as  notwithstanding  the  publication  of  the  Ripuarian  and  Salic  codes, 
the  Roman  subjects  in  Gaul  were  indulged  in  the  free  use  of  the  Tlieodosiau 
laws,  especially  in  the  cases  of  marriage,  inheritance,  and  other  important 
transactions  of  private  life.  In  their  establishments  of  magistrates  and  civil 
tribunals,  an  imitation  of  the  Roman  polity  is  discoverable  among  the  Franks  ; 
and,  for  a  considerable  time  after  their  first  conquests,  frequent  instances  are 
to  be  found,  in  their  history,  of  a  deference,  and  in  some  instances,  even  of  an 
acknowledgment  of  territorial  submission  to  the^emperors  of  Rome. 

III.  2.  In  the  course  of  time,  all  these  laws  were,  in  some  measure  at  least, 
superseded  by  the  CAPITULARIES.  The  word  capitulary  is  generic,  and 
denotes  every  kind  of  literary  composition  divided  into  chapters.  Laws  of  this 
description  appear  to  have  been  promulgated  by  Childebcrt,  Clotairo,  Carlo- 
man  and  Pepin.  But  no  sovereign  seems  to  have  promulgated  so  many  of 
them,  as  Charlemagne.  That  monarch  appears  to  have  wished  to  cff'ect,  in  a 
certain  degree,  an  uniformity  of  law  throughout  his  extensive  dominions.  With 
this  view,  is  supposed,  he  added  many  laws,  divided  into  short  chapters  or 
heads,  to  the  existing  codes,  sometimes  to  explain,  sometimes  to  amend,  and 
sometimes  to  reconcile  or  remove  the  difference  between  them.  They  were 
generally  promulgated  in  public  assemblies,  composed  of  the  sovereign  and 
the  chief  men  of  the  nation,  as  well  ecclesiastics  as  secular.  They  regulated, 
equally,  the  spiritual  and  the  temporal  administration  of  the  kingdom.  The 
execution  of  them  was  intrusted  to  the  bishops,  the  count.s,  and  the  missi  regii. 
Many  copies  of  them  were  made,  one  of  which  was  generally  preserved  in  the 
royal  archives.  The  authority  of  the  capitularies  was  very  extensive ;  it  pre- 
vailed in  every  kingdom,  under  the  dominion  of  the  Franks,  and  was  submitted 

to 


191.  a.]    Of  Tenants  in  Common.  L.  3.  C.  4.  Sect.  300. 

to  in  many  parts  of  Italy  and  Germany.  The  earliest  collection  of  the  capitu- 
laries, is  that  of  Angesise  abbot  of  Fontenelles.  It  was  adopted  by  Lewis 
the  Debonnaire  and  Charles  the  Bald,  and  was  publicly  approved  of  in  many 
councils  of  France  and  Germany.  But,  as  Angesise  had  omitted  many  capitu- 
laries in  his  collection,  Benedict  the  Levite,  that  is,  the  deacon  of  the  church 
of  Mentz,  added  three  books  to  them.  Each  of  these  collections  was  con- 
sidered to  be  authentic,  and,  of  course,  appealed  to  as  law.  There  have  been 
subsequent  additions  made  to  them.  The  best  edition  is  that  of  Baluze  in 
1677.  A  splendid  republication  of  this  edition  was  begun  by  Monsieur  de 
Chiniac  in  1780  ;  he  intended  to  comprise  it  in  four  volumes.  Two  only  have 
yet  made  their  appearance.  In  the  collections  of  ancient  laws,  the  capitularies 
are  generally  followed  by  the  Formularia,  or  forms  of  forensic  proceedings  and 
legal  instruments.  Of  these,  the  formulare  of  Maaculphus  is  the  most  curious. 
The  formularia  generally  close  the  collections  of  ancient  laws.  With  the 
Merovingian  race,  the  Salic,  Burgundian,  and  Visigothic  laws  expired.  The 
capitularies  remained  in  force,  in  Italy,  longer  than  in  Germany;  and  in 
France  longer  than  in  Italy.  The  Incursions  of  the  Normans,  the  intestine 
confusion  and  weakness  of  government  under  the  successors  of  Charlemagne, 
and,  above  all,  the  publication  of  the  decretum  of  Gratian,  which  totally  super- 
seded them  in  all  religious  concerns,  put  an  end  to  their  authority  in  France. 

III.  3.  They  were,  in  some  measure,  succeeded  by  the  CUSTOMARY  LA  W. 
It  is  not  to  be  supposed,  that  the  codes  of  law,  of  which  we  have  been  speak- 
ing, entirely  abrogated  the  usages  or  customs  of  the  countries  in  which  they 
were  promulgated.  The  laws  only  were  abrogated  by  them  which  were 
contrary  to  the  regulations  they  established.  In  other  respects  the  codes  not 
only  permitted,  but,  in  some  instances,  expressly  directed,  that  the  ancient 
usages  should  remain  in  force.  Thus  in  all  the  countries  governed  by  the 
ancient  codes,  there  existed,  at  the  same  time  a  written  body  of  law,  sanctioned 
by  public  authority,  and  usages  or  customs,  admitted  to  be  of  public  authority, 
by  which  those  cases  were  governed,  for  which  the  written  body  of  law  con- 
tained no  provision.  After  the  ancient  codes  and  capitularies  fell  into  desue- 
tude, the  customs  multiplied.  By  degrees,  written  collections  were  made 
of  them.  Some  of  these  were  made  by  public  authority ;  others  were  the 
collection  of  individuals,  and  depended  therefore,  for  their  weight,  on  the 
private  authority  of  the  individuals  by  whom  they  were  made,  and  the  autho- 
rity, which  they  insensibly  obtained,  in  the  courts  of  justice.  Collections 
of  this  nature,  committed  to  writing  by  public  authority,  form  a  considerable 
part  of  the  law  of  France,  and  are  a  striking  feature  of  the  jurisprudence  of 
that  kingdom.  The  origin  of  them  may  be  traced  to  the  beginning  of  the 
Capctian  race.  The  monarchs  of  that  line,  in  the  charters  by  which  they 
granted  fiefs,  prescribed  the  terms  on  which  they  were  to  be  held.  These 
they  often  abridged,  enlarged  and  explained,  by  subsequent  charters.  They 
also  published  charters  of  a  more  extensive  nature.  Some  of  these  contained 
regulations  for  the  possessions  of  their  own  domain  ;  others  contained  general 
regulations  for  the  kingdom  at  large.  In  imitation  of  these,  the  great  vassals 
of  the  crown  granted  their  charters,  for  the  regulation  of  the  possessions  held 
of  them.  In  the  same  manner,  when  allodial  laud  was  changed _  to^  feudal, 
charters  were  granted  for  the  regulation  of  the  fiefs ;  and,  when  villeins  were 
enfranchised,  possessions  were  generally  given  to  them,  and  charters  were  granted 
to  regulate  these  possessions.  Thus  each  seigniory  had  its  particular  usages. 
Such  was  their  diversity,  that,  throughout  the  whole  kingdom,  there  could 
hardly  be  found  two  seigniories,  which  were  governed  in  every  point,  by  the 
same  law.  With  a  view  more  to  ascertain,  than  to  produce  an  uniformity  in, 
these  usages,  though  the  latter  of  these  objects  was  not  quite  neglected, 
Charles  the  Seventh  and  his  successors  caused  to  be  reduced  to  writing,  the 
different  local  customs,  which  prevailed  throughout  the  kingdom.  In  1453, 
some  time  after  Charles  the  Seventh  had  expelled  the  English  from  France, 
he  publised  an  ordinance,  by  which  he  directed,  that  all  the  customs  and 

usages 


L.  3.  C.  4,  Sect.  300.    Of  Tenants  in  Common.    [191.  a. 

usages  should    be  committed  to  writings  and   verified  by  tlie  practioners  of 
each  place,  then  examined  and  sanctioned  by  the  great  council  and  parliament: 
and  that  the  customs,  thus  sanctioned,  and  those  only,  should  have  the  force 
of  laws.     Such  were  the  obstacles  in  the  way  of  this  measure,  that  forty-two 
years  elapsed  before  the   customs  of  any  one  place  were  verified.     From  that 
time,  the  measure  lingered,  till  the  reign  of  Lewis  the  Twelfth;    it  was  then 
resumed.     About  the  year  1609,  it  was  completed.     The  customs  of  Paris, 
Orleans,  Normandy,  and  some  other  places,  were  afterwards  reformed.     Those 
of  Artois  and  Saint  Omer  were  reformed  within  the  last  hundred  years.     The 
manner  of  proceeding,  both  in  reducing  the  customs,  and  reforming  them,  was, 
generally  speaking  as  .follows.     The  king,  by  his  letters  patent,  ordered  an  as- 
sembly of  the  three   states   of  each   province.      When    this  assembly  met,  it 
directed  the  royal  judges,  grcfficrs,  maires  and  syndics,  to  prepare  memoirs  of 
all  the  customs,  usages,  and  forms  of  practice,  they  had  seen  in  use,  from  of 
old.     On  receiving  these  memoirs,  the  states  chose  a  certain  number  of  nota- 
bles, and  referred  the  memoirs  to  them,  with  directions  to  put  them  in   order, 
and  to  frame  a  cahier,  or  short  minute  of  their  contents.     This  was  read  at 
the  assembly  of  the  states,  and  it  was  there  considered,  whether  the  customs 
wei-e   such,  as   they  were   stated  to  be  in  the   cahier.     At  each  article,  any 
deputy  of  the  state  was  at  liberty  to  mention  such  observations  as  occurred  to 
him.     The  articles  were  then  adopted,  rejected,  or  modified,  at  the  pleasure  of 
the   assembly.     They  were   then   taken  to  parliament    and   registered.     The 
customs  of  each  place,  thus  reduced  to  writing  and  sanctioned,  were  called  the 
coutumler  of* that  place.     These  coutumiers  were  formed  into  one  collection, 
called  the  Couhimier  de  France,  or  the    Grand   Coutamier.     The  best  edition 
of  this  is  by  Richebourgh,  in  four  volumes  in  folio.    It  contains  near  one  hun- 
dred collections  of  the  customs  of  provinces,  and   two  hundred  collections  of 
the  customs  of  cities,  towns  or  villages.     Each  coutumicr  has  been  the  subject 
of  a  commentary.     Five-and-twenty  commentaries  have  appeared,  (some   of 
them  voluminous,)  on  the  coutumier  of  Paris  alone.     Of  these  commentaries, 
that  of  Dumoulin  has  the  greatest  celebrity.      Les  Estahlisscnicnt  de  St.  Louis, 
hold  a  high  rank  for  the  wisdom  with  which  they  are  written,  and  the  curious 
matter  they  contain.     The  Coutumicr  de  JVormandic,  for  its  high  antiquity, 
and  the  relation  it  bears  to  the  feudal  jurisprudence  of  England,  is  particularly 
interesting  to  an  English  reader.     Basnage's  edition,  and  his  learned  commen- 
tary upon  it,  are  well  known.     But  the  most  curious  of  all  collections  of  feudal 
law,  is  that  intitled,  Assizes  de  Jerusalem. — In  1099,  Jerusalem  was  taken  by 
the  Crusaders,  under  the  command   of  Godfrey  of  Bouillon.     He  established, 
for  the  administration  of  justice  in  that  city  and  the   adjacent  territory,  two 
tribunals;  one,  the  Haute   Cour,  for  the   nobility;  the  other,  the  Cour  de  la 
Bourgooisce,  for   the  commonalty.     The  sovereign  presided  over  the  former, 
the  viscount  over  the  latter :  each  had  its  code  of  law ;  the   former  was  com- 
piled, with  the  council  of  the  patriarch,  the  barons,  and  the  sages ;  the  latter, 
with  the  council  of  the   freemen   and   burghers.     As   these   collections  were 
made  by  persons  governed  by  the  feudal  polity,  as  it  prevailed  in  the  principal 
states  of  Europe,  they  may  be  supposed  to  have  contained  some  of  its  most 
important  principles  and  regulations  ;  but,  as  the  principal  Crusaders  came  from 
France,  the  collections  may  be  supposed  to  contain  more  of  the  laws  and  usages 
of  that  country  than  of  any  other.     The  collection  was  called  the  Assizes  de 
Jerusalem ;  they  were  composed  in  the  French  language;  and  the  autograph, 
written  in  uncial  letters,  with  gilt  initials,  was  signed  by  the  sovereign  and  the 
patriarch,  and  deposited  in  the  church  of  the  Holy  Sepulchre.     It  became 
the  prey  of  Saladin,  when  he  retook  Jerusalem.     Partly  from  tradition,  and 
partly  from  its  scattered  fragments,  a  new  edition  of  it  was  made,  towards  the 
middle  of  the  loth  century,  by  Jean  de  Ibelen,  count  of  Joppe  and  Ascalon, 
and  lord  of  Rama.     A  third  edition  of  it  was  made  in  1309  by  the  direction 
of  Peter  of  Lusignan,  king  of  Cyprus,  and  deposited  in  the  church  of  Nicosia, 
in  a  chest,  with  four  seals.     All  the  Christian  possessions  of  the  crusaders  were 

governed 


191.  a.]    Of  Tenants  in  Common.    L.  3.  C.  4.  Sect.  300. 

governed  by  it;  and,  when  Baldwyn  conquered  Constantinople,  he  promulgated 
it,  in  that  city,  for  the  government  of  his  European  subjects.  When  Cyprus 
fell  under  the  dominion  of  the  Venetians,  the  copy  deposited  at  Nicosia,  fell 
into  their  hands.  It  was  found  difficult  to  understand  the  language  of  the  text : 
the  Venitian  government,  in  1535,  caused  it  to  be  translated  into  the  Italian 
lano-uatre,  and  the  translation  to  be  magnificently  printed ;  the  manuscript  was 
deposited  in  the  church  of  St.  Mark.  La  Thaumassiere  published  a  French 
translation  of  it  in  1670 ;  but,  having  been  made  from  an  imperfect  copy, 
Lewis  the  16th  obtained  a  magnificent  transcript  of  the  original  from  the  senate 
of  Venice.  M.  Bernardi,  (Z>e  Vorigine  ct  des progres  de  la  legislation  Francaise, 
Parish,  1816,  octavo,)  from  whom  this  account  of  the  A|sizes  de  Jerusalem  is 
taken,  speaks  of  it  as  a  work  of  great  merit,  and  thinks  it  superior  to  the  Codes 
Napoleon:  these  are  five  in  number,  the  Code  Civil,  the  Code  Criminelle,  the 
Code  de  Commerce,  the  Code  de  Conscription,  and  the  Code  de  Procedure.  It 
is  allowed  that  the  first  possesses  great  merit,  that  the  third  is  very  faulty,  and 
that,  whatever  is  good  in  any  of  them  is  rendered  almost  entirely  useless  by 
the  last,  which  has  completely  confounded  and  paralysed  all  the  judicature  of 
the  country. 

Such  are  the  principal  sources  of  the  feudal  jurisprudence  of  the  kingdom 
of  France.     It  remains  to  take  notice  of  some  of  the  chief  compilations  by  which 
the  feudal  polity  of  other  kingdoms  is  regulated.     The  authority,  or  at  least 
the  influence,  which  the  capitularies,  had  on  these,  has  been  already  noticed. 
After  these,  the  attention  is  naturally  directed  to  that  collection,  which,  pro- 
bably in   the  reign  of  Frederick  the  second,  Hugolinus,  a  Bononian  lawyer, 
compiled  from  the  writings  of  Obertus  of  Otto  and  Gerhardus  Niger,  and  from 
the  various  customary  laws  then  prevailing  in  Italy,  and  added  under  the  title, 
Decima  Collatio,  to  the  Novels.     It  is  to  be  found  in  most  editions  of  the 
Corpus  Juris  Cicilis.   In  the  edition  of  Cujas  it  is  divided  into  fivebooks;  the 
first  contains  the  treatises  of  Gerhardus  Niger ;  the  second  and  third  those  of 
Obertus  of  Otto;  the  fourth  is  a  selection  from  various  authors;  the  fifth  is 
a  collection  of  constitutions  of  difi'erent  emperors  respecting  feuds.     To  these 
is  added  the  golden  Bull  of  the  emperor  Charles  the  fourth.     Authors  are  by 
no  means  agreed,  either  in  the  order,  or  division  of  this  collection.     Several 
editions  ha\'^  been  published  of  it.     In  that  published  by  Joannes  Calvinus  or 
Calvus  at   Franckfort,  in  1611,  there  is  a  collection  of  every  passage,  in  the 
canon  law,  that  seems  to  relate  to  the  law  of  feuds.     As  this  edition  is  scarce, 
and  it  may  happen   that  some  English   reader  may  be  desirous  of  seeing  all 
these  passages,  the  following  short  account  of  Calvinus  or  Calvus's  selection 
of  them,  is  transcribed  from   Hoffman's  S>issertatio  de  Unico  Juris  fcudalis 
Longohardici Libro. — Jurisprudentiam/eudcdem,  sex  lihris  comprehensam,sive 
potius  consuetudines,  feudorm,  secundum  distrlhutionem  Cujacianam  edidit,  et 
sub  titulo  libri  feodorum  VI.  addidit,  qnidquid  alicujns  de  hac  materia  mo- 
menti,  in  universo  corpore  juris  canonici  eocpressum   inyenerat ;  hoc  est  totum 
titidum  decreialinm  Gregorii  IX.  sivecapitula,  Insinuationel.   Et  ex  parte  tua, 
2.  X.  de  feiidis,  porro  cap.  cseterum,  5   et  novit,  13  de  Judiciis,  cap.  Quse^  in 
Ecclesiarium,  7  de  Const itutionibus,  cap.  Adaures,  10  In  quibusdam,  12  et  Gra- 
vem,  13  DePoinis,  cap.  Gravcm,  53  de  Sent  excomm.  cap.  Ex  trans missa,  Qet 
verum,7   de  foro  competcnte  eurumque  summaria.     The  next  treatise  to  be 
mentioned  is,  the  Treatise  de  Beneficiis,  generally  cited  under  the  appellation  of, 
Auctor  vetus  de  Beneficiis.  It  was  first  published  by  Thomasius,  at  Ilalle,  1708, 
with  a  dissertation  on  its  author  and  the  time  when  it  was  written.     He  considers 
it  to  be  certain,  that  it  was  written  after  the  year  800,  and  before  the  year  1250, 
and  conjectures,  that  it  was  not  written  before  the  emperor  Otho,  and  that  it 
was  written  before  the  Emperor  Conrad  the  second.     To  these  must  be  added 
the  Jus  Feudale  Saxonicum  ;  which  seem  to  be  part  of,  or  an  appendix  to,  a 
treatise   of  great  celebrity  in  Germany,  intitled  the    Speculum   Saxonicum. 
The  Jus  Feudale  Saxonicum,  is  said  by  Struvius,  to  have  been  translated,  by 
Goldastus,  from  the  German,  into  the  Latin  language,  for  the  benefit  of  the 

Poles 


L.  3.  C.  4.  Sect.  300.     Of  Tenants  in  Common.     [191.  a. 

Poles.  It  is  supposed  to  have  been  published,  between  the  year  1215  and  the 
year  1250.  The  Sperulam  Suevicum  seems  to  have  been  composed  in  imitation 
of  the  Speculum  Saxonicum,  probably,  between  the  year  1250  and  the  year 
1400.  To  this  is  added  the  Jus  Fuedale  AUemanicum,  composed  about  the 
same  time  and  probably  by  the  same  author.  But  none  of  these  collections 
acquired  the  same  authority  as  the  books  of  the  fiefs.  They  were  known  by 
the  name  of  the  Lombard  law.  By  degrees  they  were  admitted,  as  authority, 
by  most  of  the  courts,  and  taught  in  most  of  the  academies  of  Italy  and  Ger- 
many. Like  the  civil  and  canon  law,  they  became  the  subject  of  innumerable 
glosses.  Those  of  Columbinus  were  so  much  esteemed,  that,  no  one,  it  is  said, 
ventured  to  publish  any  after  him.  About  the  end  of  the  loth  century,  James 
of  Ardezcne  published  a  new  edition  of  the  Gloss  of  Columbinus,  and  added, 
under  the  title  of  Cap!(uhi  ExfraonJinaria,  a  collection  of  adjudged  cases,  on 
feudal  matters.  This  was  inserted  in  some  of  the  latter  editions  of  the  Corpus 
Juris.  About  the  year  1430,  Minuccius  de  Prato  veteri,  a  Bononian  lawyer, 
by  the  orders  of  the  emperor  Sigismond,  gave  a  new  edition  of  the  Books  of 
the  Fiefs  with  the  Gloss  of  Columbinus.  These  were  confirmed  by  the  emperor 
Sigismond,  and  afterwards  by  the  emperor  Frederick  the  3d,  and  publicly 
taught  in  the  university  of  Bononia.  Such  are  the  principal  sources  of  the 
feudal  jurisprudence  of  foreign  countries. 

IV.  The  early  history  of  the  feuds  of  foreign  countries  is  involved 
iu  a  considerable  degree  of  obscurity.     That  in  the  time  of  Pepin  the  feudal 
polity  arrived  at  a  degree   of  maturity  and  consistence,  is  certain.     It  must, 
therefore,  have  previously  had  its  rise  and  progress.     Some  vestiges  of  these 
are  discoverable  in  the  scanty  materials  which  have  reached  us,  of  the  history 
and  antiquities  of  those  early  times.     We  find  mention  iu  them  of  the  leuds, — 
of  lands   intrusted  (coramendati)  by  the   king  to  his  followers;— of  estates, 
which,  on  account  of  the  infidelity,  or  the  cowardice  of  the  proprietary,  or  his 
placing  himself  under  another  lord,  the  king  takes  from  him,  and  restores  to 
the  fisc.     There  is  also  mention  of  the  pares  comitum,  and  the  fideles,  and  of 
reinvesting  the  leudes,  who  had  been   unjustly  deprived  of  their   possessions. 
At  first  kings  alone  granted  fiefs.     They  granted  them  to  laymen  only,  not  to 
ecclesiastics'^  and  to  such   only  who  were  free,  and   probably  to  the  most  im- 
portant only  of  their  followers.     They  were  not  granted  for  any  certain  or 
determinate  period  of  time  ;  they  were  not  transmissible  to  the  descendants  of 
the  grantee;  they  were  resumable  on  the  bad   conduct  of  the  vassal,  without 
the  sovereign's  being  obliged  to  show  the  cause  of  the  resumption,  or  having 
recourse  to  any  judicial  process.     The  vassal  had  no  power  to  alienate  them. 
Every  freeman  was  subject  to  the  obligation  of  military   duty;  this  was  the 
case,  in  a  more  particular  manner,  of  the  feudal  tenants;      theywere  to  attend 
the  sovereign  on  horseback,  and  in  complete  armour,  that  is,  with  the  breast- 
plate, the  shield,  the   spear,  the  helmet,  and  the  sword.     They  were  to  guard 
his  life,   member,  mind,  and   right  honour.     They  were  first  called  homines, 
fidt'hs,  leudes,  anfrusfiones ;  to  all  these  the  appellation   of  vasmls   succeeded. 
"it  appears,  that,  in  early  times,  the  feudal  tenants  were  numerous.     A  consi- 
derable part  however  of  the  subjects  were  free  from  the  feudal  tenure.     The 
lands  held  by  these,  were  called  allodial.     The  proprietors  of  them  were  under 
the  general  obligation  of  military  service,  and  were  subject  to  general  taxation. 
Their  particular  uature  was  chiefly  discernable  in  this,  that  they  diff"ered  from 
the  villeins,  as  they  were  freemen  ;  and  from  the   feudal  tenants,  as  their  pos- 
sessions were  from  the  first  hereditary.     For,  originally,  the  crown  itself  was 
not,  in  the  sense  in  which  we   now  use  the  word,  hereditary.     A  marked  pre- 
ference was  always  shown,  both  by  the  sovereign  aud  the  nation,  to  the  royal 
lineage.     But  by  each   the   strict  line  of  hereditary  descent  was   occasionally 
interrupted  by  calling  to  the  throne  a  remote  relation,  to  the  prejudice  of  the 
actual  heir.     The   government  was   monarchial ;  but   strongly  controlled  by 
the  people.     Twice  a  year,  the  people,  or  as  they  were  afterwards  called,  the 

states, 


191.  a.]    Of  Tenants  in  Common.  L.  3.  C.  4.  Sect.  300. 

assembled.  The  first  of  these  general  assemblies,  was  held  originally  in  the 
month  of  March,  afterwards  in  the  month  of  May;  and  always  in  open  air. 
Hence  from  the  time  of  meeting,  the  expression  le  champ  de  Mars,  afterwards 
le  champ  de  Mai.  The  second  assembly  was  held  in  the  autumn.  It  was  di- 
vided into  two  classes.  The  first  comprised  the  bishops,  the  abbots,  the  dukes, 
the  counts,  and  the  elders  of  the  nation  ;  and  all  of  them  had  deliberative 
voices  in  the  assembly.  The  second  contained  the  magistrates  and  the  inferior 
offices;  but  these  attended  only  to  receive  the  orders  of  the  assembly.  The 
kino'  proposed  the  subjects  of  debate,  by  his  referendary ;  the  members  of  the 
first  class  deliberated  upon  them  ;  the  king  pronounced  the  decision.  The  acts 
were  reduced  to  writing,  under  the  name  of  capitularies,  and  the  execution  of 
them  was  intrusted  to  the  members  of  the  second  class.  The  governors  of 
provinces  were  called  dukes ;  the  counts  were  subordinate  to  them,  and  ad- 
ministered justice  in  the  districts  committed  to  their  care.  The  missi  regii, 
were  commissaries  appointed  by  the  king  to  attend  to  the  general  administra- 
tion of  justice  throughout  the  nation.  Next  to  the  counts  were  the  barons, 
or  the  chief  land-owners ;  then  followed  the  general  body  of  freemen ;  after 
these  came  the  artisans,  the  labourers,  and  the  villeins.  The  general  admin- 
istration of  affairs  was  intrusted  to  the  almoner,  who  was  at  the  head  of  the 
cleray.  The  referendary  and  chancellor  were  the  chief  counsellors  of  state  : 
then  followed  the  chamberlain,  the  count  of  the  palace,  the  high  steward,  the 
butler,  the  constable,  the  marshal,  the  four  first  huntsmen,  and  the  grand 
falconer. 

Such  appears  to  be  the  general  outline  of  the  feudal  government,  during  the 
Carlovingian  line.  That  line  was  extinguished,  in  France,  by  the  accession  of 
the  Capetian  line  ;  in  Germany  in  the  accession  of  the  House  of  Saxony  ;  and 
in  Italy,  by  the  usurpation  of  the  dukes.  Soon  after,  or  perhaps  some  time 
before  this  event  fiefs  became  hereditary.  Even  the  offices  of  duke,  count  and 
margrave,  and  the  other  high  offices  of  the  crown,  were  transmitted  in  the 
course  of  hereditary  descent :  and  not  long  after,  the  right  of  primogenitiire 
was  universally  established.  It  first  took  place  in  the  descent  of  the  crown, 
but  was  soon  admitted  by  every  branch  of  the  feud.  This  stability  of  pos- 
session was  an  immense  addition  to  the  power  of  the  crown  vassals.  It  enabled 
them  to  establish  an  iruilcpendency  of  the  crown.  They  usurped  the  sovereign 
property  of  the  land,  with  civil  and  military  authority  over  the  inhabitants. 
The  possessions,  thus  usurped,  they  granted  out  to  their  immediate  tenants, 
and  these  granted  them  over  to  others,  in  like  manner.  By  this  means,  though 
they  always  professed  to  hold  their  fiefs  from  the  crown,  they  were  in  fact  ab- 
solutely independent  of  it.  They  assumed  in  their  territories  every  royal  pre- 
rogative; they  promulgated  laws;  they  exercised  the  power  of  life  and  death  ; 
they  coined  money ;  fixed  the  standard  of  weights  and  measures ;  granted 
safeguards ;  entertained  a  military  force ;  and  imposed  taxes,  with  every  other 
right  supposed  to  be  annexed  to  royalty.  In  their  titles  they  styled  them- 
selves, Dukes,  &c.  "  by  the  grace  of  God,"  a  prerogative  avowedly  confined  to 
sovereign  power.  It  was  even  admitted  that,  if  the  king  refused  to  do  the 
lord  justice,  the  lord  might  make  war  against  hitn.  In  the  ordonnances  of 
St.  Lewis,  ch.  50,  is  this  remarkable  passage :  "  If  the  lord  says  to  his  liege 
'<  tenent.  Come  with  me,  I  am  going  to  make  war  against  my  sovereign,  who 
''has  refused  me  the  justice  of  his  court;  upon  this,  the  liegeman  should 
"  answer  in  this  manner  to  the  lord  ;  I  would  willingly  go  to  the  king  to  know 
"  the  truth  of  what  you  say,  that  he  has  denied  you  his  court.  And  then  he 
"  shall  go  to  the  king,  saying  to  him  in  this  manner;  Sir,  the  lord  in  whose 
"  liegeance  and  fealty  I  am,  has  told  me  you  have  refused  the  justice  of  your 
"  court ;  and  upon  this  I  am  come  expressly  to  your  majesty  to  know  if  it  is 
"  so  for  my  lord  has  summoned  mc  to  go  to  war  with  you.  And  thereupon, 
"  if  the  king  answers,  that  he  will  do  no  judgment  in  his  court  the  man  shall 
<'  return  immediately  to  his  lord,  and  his  lord  shall  equip  him,  and  fit  him  out 
"  at  his  own  expense ;  and  if  he  will  not  go  with  him,  he  shall  lose  his  fief  l)y 

"right. 


L.  3.  C.  4.  Sect.  300.     Of  Tenants  in  Common.    [191.  a. 

"right.     But  if  the  king  answers,  that  he  will  hear  him,  and  do  justice  to 
"  the  lord,  the  man  shall  return  to  him,  and  shall  say :  Sir,  the  king  has  said 
"  to  me,  that  he  will  willingly  do  you  justice  in  his  court.     Upon  which,  if  the 
''  lord  says,  I  never  will  enter  into  the  king's  court,  come  therefore  with  me, 
"  according  to  the  summons  I  have  sent  you ;  then  the  man  shall  say,  I  will 
"  not  go  with  you ;  and  he  shall  not  lose  his  fief  for  his  not  going."     This 
shows  how  powerful  and  absolute  the  great  vassals  were.     The  same  motive 
which  induced  the  vassals  of  the  crown  to  attempt  to  make  themselves  inde- 
pendent of  the  crown,  induced  their  tenants  to  make  themselves  independent 
of   them.      This   introduced  an   ulterior  state   of  vassalage.     The  king  was 
called  the  Sovereign  Lord;  his  immediate  vassal  was  called  the  Suzereu/n  ;  and 
the  tenants  holding  of  him  were  called  the  arrere  vassals.     Between  these  and 
the  sovereign,  the  connection  was  very  small.     In  those  reigns,  even,  when  the 
power  of  the  monarch  was  greatest,  his  authority  over  the  arrere  vassals  was 
faint,  and  indirect.  Of  this  the  history  of  Joinville  prevents  a  striking  instance  : 
Previously  to  the  departure  of  St.  Lewis  on  the  crusade,  he  summoned  an 
assembly  of  his  barons  to  attend  him,  and  required  them  to  swear,  that,  on 
the  event  of  his  decease  during  the  expedition,  they  would  be  loyal  and  true 
to  his  son,     Joinville,  his  historian,  a  feudatory  of  the  count  of  Champaigne, 
though    he    possessed  a  most    enthusiastic  veneration  for  the  king,  and  the 
warmest  attachment  to  his  person,  refused,  on  account  of  his  vassalage  to  the 
count,  to  take  the  oath  ;  his  words  are  "  11  h  me  demanda,  metis  je  ne  vox  /aire 
point  de  serement,  car  je  n'estoie  pas  son  home."     The  consequence  was,  that 
in  every  kingdom  there  were  as  many  sovereigns,  with  the  power  and  ensigns 
of  royalty,  as  there  were  powerful  vassals.     With  respect  to  France,  Hugh 
Capet  acquired  the  crown  of  that  kingdom,  by  availing  himself  of  the  extreme 
weakness,  to  which  it  was  reduced  by  the  system  of  subinfeudation.     After 
he  acquired  the  throne,  he  used  his  utmost  efforts  to  restore  it  to  its  ancient 
splendor  and  strength.     His  successors  pursued  his  views  with  undeviating  at- 
tention and  policy;  and  with  so  much  success,  that,  previously  to  the  accession 
of  Lewis  the  loth,  the  seventy-two  great  fiefs  of  France  were  united  to  the 
crown,  and  all  their  feudal  lords  attended,  at  the  states  general  in  1614,  the 
last  that  were  held,  till  the  late  memorable  assembly  of  them  in  1789.     This 
system  of  re-union  was  completed  by  the  accession  of  the  provinces  of  Lor- 
raine and  Bar  to  the  crown  of  France,  in  1735.     See  Ahhrege  Chronologique 
de  grands  Fiefs  de  la  Couronne  de  France.  Paris,  1729.     Like  France,  Spain 
was  broken  into  as  many  principalities  as  it  contained  barons.     In  the  course 
of  time,  they  were  all  absorbed  in  the  more  powerful  kingdoms  of  Arragon 
and  Castile;  and,  by  the  marriage  of  Ferdinand,  the  sovereign  of  Arragon, 
with  Isabella,  the  sovereign  of  Castile,  they  were  all  united  to  descend  in  the 
same  line.     No  such  re-union  took  place  in  the  empire.     Under  the  immediate 
successors  of  Charlemagne,  it  was  broken  into  innumerable  principalities,  never 
to  be  re-united.     If  we  allow  for  the  difference  of  public  and  private  manners, 
it  presents  the  same  spectacle  at  this  day,  as  the  other  states  of  Europe  pre- 
sented formerly,  but,  which  is  now  peculiar  to  itself — a  complex  association 
of  principalities  more  or  less  powerful,   and  more  or  less  connected,  with  a 
nominal  sovereignty  in  the  emperor,  as  its  supreme  feudal  chief.     In  England 
no  such  dismemberment  as  that  we  have  been  speaking  of,  took  place ;  nor 
did  the  nobles  ever  acquire,  in  England,  that  sovereign  or  even  independent 
power,  which  they  acquired  in  Spain,  Germany,  or  France.     The  power  and 
influence  of  some  of  the  English  nobles  were  certainly  great,  and  sometimes 
overshadowed  royalty  itself.     But  it  is  evident,  that  Nevil  the  great  earl  of 
Warwick,  and  the  nobles  of  the  house  of  Percy,  the  greatest  subjects  ever 
known  in  the  country,  were,  in  strength,  dignity,  power  and  influence,  and  in 
every  other  point  of  view,  greatly  inferior  to  the  dukes  of  Brittany  or  Bur- 
gundy, or  the  counts  of  Flanders.     The  nature  of  this  note  neither  requires 
nor  allows  a  further  deduction  of  the  public  history  of  the  feuds  of  Europe : 
the  four  circumstances  we  have  mentioned, — the  heirship  of  fiefs,  the  right  of 

primogeniture, 


191.  a.  J    Of  Tenants  in  Common.     L.  3.  C.  4.  Sect.  300. 

primogeniture,  the  intermediate  sovereignty  of  the  crown  vassals,  and  the 
introduction  of  subinfeudation,  completed  the  triumph  of  the  feud  over  mon- 
archy- Here  the  historical  deduction  naturally  closes.  The  Carlovingian 
family  is  the  important  link  which  connects  ancient  with  modern  history, 
Roman  jurisprudence  with  the  codes  of  the  German  tribes,  and  the  law  of 
civil  obligation  with  the  law  of  tenure. 

V.  Before  we  quit  the  subject  of  foreign  feuds,  it  may  not  be  unacceptable 
to  the  reader,  that  we  should  state,  in  a  few  words,  the  nature,  first,  of  the 
STATES  general;  secondly,  of  the  parliaments;  thirdly,  of  the  nobi- 
lity OF  THE  NATIONS  ON  THE  CONTINENT,  where  the  feudal  polity  has  been 
introduced;  and,  fourthly,  some  observations  on  the  difference  between 

THE  parliament  AND  NOBILITY  OF  ENGLAND,  AND  THE  PARLIAMENT  AND 
NOBILITY  OF  THE  COUNTRIES  ON  THE  CONTINENT. 

V.  1.  It  appears,  from  what  has  been  already  mentioned  in  this  annotation, 
that  the  National  Assembly  on  the  Champ  de  Mars,  and  the  Champ  de  Mai, 
consisted  of  a  body  of  individual  chieftains,  convened  by  their  prince.  After 
the  chieftains  had  made  their  governments  independent  and  hereditary,  the 
National  Assembly  was  a  convention  of  hereditary  chiefs  of  particular  states, 
briui-ing  to  it  their  own  vassals.  To  this  assembly,  the  Commons,  who  had  no 
place  in  the  national  assembly,  as  it  was  originally  constituted,  obtained,  by  de- 
"•rees,  a  rio^ht  of  admittance.  Then,  the  national  assembly  became  constituted, 
not  of  the  three  orders  of  the  state, — for  it  is  anticipating  events,  to  give  them 
this  appellation, — but  of  the  three  states,  of  which  the  nation  was  composed,  the 
first  were  those  governed  by  the  great  ecclesiastical  vassals ;  the  second  were 
those  governed  by  the  great  lay  vassals ;  the  third,  were  civil  communities,  go- 
verned by  municipal  ofiicers.  The  two  former  attended  in  person,  bringing,  as 
we  have  said,  their  own  vassals  with  them  ;  the  last  attended  by  deputies.  Af- 
terwards, the  great  ecclesiastical  and  great  lay  vassals  sinking  in  power,  the 
general  body  of  the  clergy  arose  into  consequence,  and  became  the  order  of  the 
clergy.  On  the  similar  depression  of  the  great  lay  vassals,  the  general  body  of 
the  nobles  rose  into  consequence,  and  became  the  order  of  the  nobility;  the 
commonalty  retained  their  place,  but  increased  in  consequence.  Thus  consti- 
tuted, the  three  bodies  became  the  three  orders  of  the  state,  and  in  the  course 
of  time,  the  first  and  second,  as  well  as  the  third  order,  appeared  by  deputies. 

V.  2.  But,  in  the  mean  time,  a  new  power  rose  in  the  kingdom.  In  most 
countries  on  the  Continent,  and  particularly  in  France  and  Germany,  the  sove- 
reign had  a  large  patrimonial  territory,  which  had  its  plaids  ov parliament,  for 
trying  the  causes  of  its  occupants.  This  territory  descended  to  his  successors; 
and,  as  the  great  fiefs  were  re-united  to  the  crown,  the  plaids  or  parliament  of 
the  original  patrimonial  territory  of  the  sovereign  became  the  plaids  or  parlia- 
ment of  the  land-owners  of  these  estates.  At  first,  particularly  while  judicial 
combats  lasted,  the  parliaments  administered  justice  by  a  species  of  military 
law;  insensibly,  the  parliament  became  a  court  of  civil  justice  and  civil  forms, 
and  the  king's  supreme  council.  By  degrees,  it  superseded  the  national  con- 
vention of  the  states,  so  far,  that  the  national  convention  was  less  frequently 
called,  and  at  length  fell  into  such  desuetude,  that  the  assembly  of  the  states, 
in  1014,  was  the  last  that  was  held,  before  the  memorable  assembly  of  the 
states  in  1789. 

V.  3.  With  respect  to  foreign  nohilitij, — in  France,  soon  after  the  accession 
of  the  Capetian  line;  in  Germany,  soon  after  the  house  of  Hapsburgh  became 
imperial,  the  distinction  was  introduced,  of  lineage  royal,  lineage  noble,  and 
lineage  purely  free.  The  first  was  composed  of  princes,  or  those  who  claimed 
a  royal  descent,  through  royal  descents :  the  second  was  composed  of  dukes, 
counts,  marquises,  and  barons,  or  those  who  claimed  a  noble  descent,  through 
noble  descents: — after  these,  came  the  knights  and  their  esquires;  with  the 
esquire  the  class  of  nobility  ended;  and  then  came  the  mere  freeman.     This 

distinction 


L.  3.  C.  4.  S.  300.  Of  Tenants  in  Common.  [191.  a. 

distincfion  has  been  preserved  in  Germany.  In  France,  all  the  groat  fiefs  were 
re-united  to  the  crown,  and  the  inferior  nobility  lost  much  of  their  territorial 
power  and  influence;  so  that,  towards  the  end  of  the  reign  of  Lewis  the  13th, 
they  were  little  more  than  a  priviledged  and  favoured  order,  but  wholly  de- 
pendent on  the  king,  and  subject  to  the  law. — But,  it  must  be  remarked,  that 
dukes,  marquises,  counts,  viscounts  and  barons,  as  such,  were  not  noble.  Those 
only  were  noble  who  could  prove  their  nobility  from  the  time  when  fiefs  became 
hereditary,  these  were  said  to  be  noble  of  name  and  arms;  or  those  who  could 
prove  a  century  of  nobility  in  their  family;  these  were  said  to  be  noble  of  race 
and  extraction.  To  these  must  be  added  the  ennobled  in  consequence  of  grant 
or  office. 

V.  4.  The  difference  between  the  English  nobility  and  English  parliament,  and 
the  nobility  and  parliaments  of  the  nations  on  the  Continent,  is  very  remarkable. 
The  three  states  and  three  orders  of  the  state  on  the  Continent  have  been  men- 
tioned. In  almost  every  country  on  the  Continent,  the  third  state,  or  third 
order  of  the  state,  was  originally  distinguished  from  the  nobility,  and  consisted 
of  the  commonalty  only.  In  England,  all  the  barons  or  lords  of  those  manors 
which  were  held  immediately  of  the  king,  were  entitled  to  a  seat  in  the  national 
council.  In  the  course  of  time,  they  became  numerous,  and  the  estates  of  many 
of  them  became  very  small.  This  introduced  a  difi"erence  in  their  personal  im- 
portance. In  consequence  of  it,  the  great  barons  were  personally  summoned  to 
parliament  by  the  king;  the  small  barons  were  summoned  to  it,  in  the  aggre- 
gate, by  the  sheriff.  They  assembled  in  distinct  chambers.  The  king  met  the 
great  barons  in  person ;  but  except,  when  he  summoned  their  personal  attend- 
ance, left  the  latter  to  their  own  delibrations.  These,  and  some  concurrent  cir- 
cumstances, elevated  the  great  to  a  distinct  order  fram  the  smaller  barons,  and 
confounded  the  latter  with  the  general  body  of  the  freeholders. 

In  the  mean  time,  a  considerable  revolution  took  place  in  the  right  to  the 
English  peerage.  From  being  territorial,  it  became  personal; — in  other  words, 
instead  of  conferring  on  a  favoured  subject  a  territory,  which,  being  held  of 
the  king,  made  him  a  baron,  and,  of  course,  a  peer  of  parliament,  it  often  hap- 
pened that  the  king  conferred  on  him  the  peerage,  with  reference  to  a  territory, 
but  without  conferring  on  him  any  interest  in  the  territory.  The  same  revo- 
lution took  place,  in  respect  to  the  high  offices  of  dukes,  marquises,  earls,  and 
viscounts.  These  were  originally  territorial  offices,  which  were  exercisable 
within  certain  districts,  and  entitled  the  possessors  of  them  to  a  seat  in  the 
national  council.  By  degrees,  these  also  became  mere  personal  honours,  the 
king  frequently  granting  them  to  a  person  and  his  heirs,  with  a  nominal  refer- 
ence to  a  district;  but,  without  the  slightest  authority  within  it:  and,  when 
they  were  granted  in  this  manner,  if  the  party  had  not  a  baronial  dignity,  the 
king  conferred  it  on  him,  and  thus  entitled  him  to  a  seat  in  the  higher  house. 
— Where  the  dignity  was  hereditary,  if  he  had  more  than  one  male  descendant, 
his  eldest  son  only  took  his  suat  in  the  house;  and  the  brothers  and  sisters  of 
that  son  were  commoners.  Thus,  a  separate  rank  of  nobility,  unknown  to 
foreigners,  was  introduced  in  England;  and  thus,  in  opposition  to  a  fundamental 
principle  of  the  French  law,  that  every  gentleman  in  France  is  a  nobleman, — 
it  became  a  principle  of  the  English  law,  that  no  English  gentleman  is  a  noble- 
man unless  he  is  a  peer  of  the  upper  house  of  parliament. 

In  the  manner  which  we  have  mentioned,  the  parliament  of  England  became 
divided  into  two  houses,  the  Lords  and  Commons,  and,  together  with  the  king, 
constituted  the  legislature  of  the  nation;  but  its  judicial  power  generally  fell 
into  disuse,  except  in  causes  which  arc  brought  before  the  House  of  Lords  by 


English  nobility,  is  mure  fully  explained  in  the  writer's  Succinct  account  of  the 

Geographical  and  Political  Revolutions  of  Germany,  or  the  Principal  States 

lohich  composed  the  Empire  of  Charlemagne,  from  his  Coronation  in  800,  to 

Vol  XL— 7  «^» 


191.  a.J        Of  Tenants  in  Common.  L.  3.  C.  4.  Sect.  300. 

its  dissolution  in  1806;  icith  some  account  of  the  Genealogies  of  the  Imperial 
Mouse  of  Hapshurgh,  and  of  the  Six  Secidar  Electors  of  Germany ;  and  of 
Rom,an,  German,  French  and  English  Nohility. 

VI.  It  remains  to  say  something  of  the  REVOLUTIONS  OF  THE  FEUD 
IN  THE  JURISPRUDENCE  OF  OUR  OWN  NATION. 

VI.  1.  ^*S'  TO  THE  TIME  WHEN  IT  WAS  INTRODUCED.  Whether 

feuds  prevailed  in  England,  before  the  Norman  conquest,  has  been  the  subject 
of  much  dispute.  In  1607,  an  event  happened,  which  occasioned  the  question 
to  be  discussed,  with  a  profusion  of  learning.  Several  estates  within  the  coun- 
ties of  Roscommon,  Sligo,  Mayo,  and  Galway,  being  unsettled  as  to  their  title.«, 
king  James  the  1st,  by  commission,  under  the  great  seal,  authorized  certain 
commissioners,  of  whom  Sir  Henry  Spelman  was  one,  to  make  grants  of  these 
estates.  In  exercise  of  this  authority,  the  commissioners  made  a  grant  of  lands 
in  Mayo  to  lord  Dillon.  King  Charles  the  1st  issued  a  commission,  to  inquire 
into  defective  titles:  and  orders  were  given,  that  all  persons,  who  had  any  of 
the  estates  in  question  by  letters  patent  from  the  crown,  should  produce  the 
letters,  or  an  enrolment  of  them,  before  the  lord  deputy  and  council.  In  pur- 
suance of  these  orders,  the  letters  patent  to  lord  Dillon  were  produced.  It  was 
found,  that  the  lands  were  granted  to  them  "  to  the  lord  Dillon  and  his  heirs, 
"  to  hold  by  knight  service,  as  of  his  majesty's  castle  of  Dublin."  It  was  admit- 
ted, that  the  commissioners  had  exceeded  their  commission,  in  reserving  a  mean 
tenure,  to  the  prejudice  of  the  crown,  when  they  ought  to  have  reserved,  either 
an  express  tenure,  by  knight  service,  in  capite,  or  not  to  have  mentioned  any 
tenure  3  in  which  case,  the  law  would  have  implied  a  tenure  in  capite.  The 
question,  therefore,  was,  whether  the  deficiency  of  the  tenure  so  far  affected 
the  grant,  as  wholly  to  destroy  the  legal  effect  of  it;  or,  whether  the  letters 
patent  might  not  be  good,  as  to  the  land,  and  void  only  as  to  the  tenure.  The 
case  was  argued,  several  days,  by  counsel,  on  both  sides,  and  was  afterwards 
referred  to  the  judges.  They  were  required  by  the  lord  deputy  and  council 
to  consider  of  it,  and  to  return  their  resolution.  The  judges  disagreeing  in 
opinion,  it  was  thought  necessary,  for  public  satisfaction,  to  have  it  argued 
solemnly  by  them  all.  This  was  done  accordingly.  Those  who  contended  for 
the  validity  of  the  letters  patent,  urged,  among  other  arguments,  that  tenures 
in  capite  were  brought  into  England  by  the  conquest,  but  that  grants  were  by 
the  common  law;  and,  being  more  ancient  than  tenures,  must,  of  necessity, 
be  distinct  from  the  thing  granted.  From  this,  they  inferred,  that,  though  the 
reservation  were  void,  the  grant  itself  might  be  good.  In  the  course  of  their 
arguments,  on  this  point,  they  observed,  that  Sir  Henry  Spelman  was  mistaken, 
when,  in  his  Glossary,  under  the  word  Fendum,  he  referred  the  original  of  feuds 
to  the  Norman  conquest.  This  drew  from  him  a  reply.  He  published  it  under 
the  title,  "  Of  the  Original  Tenure  by  Knight  Service  in  England."  In  this 
work,  he  argues,  with  great  learning  and  strength  of  argument,  that  tenures, 
such  as  they  were  granted,  in  the  letters  patent,  by  himself  and  the  other  com- 
missioners, in  Ireland,  were  not  in  use  before  the  conquest.  He  distinguishes 
between  what  he  calls  the  servitia  militaria  and  the  servittites  militares.  He 
contends,  that  the  grievances  and  servitudes  of  fiefs,  as  wardships,  marriages,  &c. 
which  to  that  day,  he  says,  were  never  known  to  other  nations,  governed  by 
the  feudal  law,  were  introduced  by  the  conqueror.  But  he  seems  to  concede, 
that,  in  a  general  sense,  military  service  and  feuds  were  known  to  the  Saxons. 
In  this  middle  opinion,  he  appears  to  be  followed  by  two  very  great  authorities, 
lord  Hale  and  sir  William  Blackstone.  Almost  all  writers,  however  are 
agreed,  that,  in  the  reign  of  the  concjueror,  the  feudal  law  was  completely  esta- 
blished. Upon  the  whole,  the  most  probable  conjecture  appears  to  be,  that 
evident  traces  of  something  similar  to  the  feud,  may  be  traced  in  the  Saxon 
polity;  that  it  was  established,  with  its  concomitant  appendage  of  fruits  and 
services,  by  the  Norman  barons,  in  the  possessions,  which  were  parcelled  out 
among  them,  by  the  conqueror;  and  that,  about  the  middle  of  his  reign,  it  was 

formally. 


L.  3.  C.  4.  Sect.  300.     Of  Tenants  in  Common.    [191.  a. 

formally  and  universally  established  bylaw.  This  universality  of  tenure,  ip, 
perhaps  peculiar  to  England.  In  other  kingdoms,  those  parts  of  the  lands, 
which  were  permitted  to  remain  in  the  hands  of  the  natives,  and  a  considerable 
part  of  those,  which  the  conquerors  parcelled  out  among  themselves,  were  not 
originally  subject  to  tenure.  In  the  earliest  age,  however,  of  the  feudal  lavr, 
some  advantages  attended  tenure,  and  frequently  occasioned  the  conversion  of 
allodial  into  feudal  property.  But  in  the  anarchy,  which  followed  the  removal 
of  the  Carlovingian  dynasty,  there  was  an  end  of  all  political  government :  i^:1 
that  almost  all  persons  found  it  advantageous  to  enter  into  the  feud.  To  effect 
this,  they  delivered  up  their  lands  sometimes  to  the  sovereign,  sometimes  to 
some  powerful  lord,  and  sometimes  to  the  church,  on  condition  to  receive  it 
back  in  feudality.  Lands  thus  delivered  and  returned,  received  the  appella- 
tion of  feuda  data  el  oUata.  Some  portion  of  lands,  however,  still  remained 
free.  Of  this  the  proportion  diff"ers  in  the  countries  on  the  continent.  In 
some,  the  courts  presume  it  to  be  feudal,  till  it  is  proved  to  be  allodial.  In 
others,  the  presumption  is  in  favour  of  its  allodiality.  See  before  63.  a.  note  1. 
But  with  us,  in  the  eye  of  the  law,  tenure  is  universal;  that  is,  \\xq  dominium 
directum  of  all  the  lands  in  the  kingdom  is  in  the  crown  ;  the  dominium  utile 
of  them  is  in  the  tenant.  

VI.  2.  AS  TO  THE  FRUITS  AND  INCIDENTS  OF  THE  FEUDAL 
TENURE.  These,  in  the  original  simplicity  of  the  feud,  were  reducible  to 
two :  on  the  part  of  the  lord,  to  the  obligation  of  warranty,  that  is,  to  defend  the 
title  of  his  tenant  against  all  others,  and,  when  subinfeudation  was  introduced, 
to  the  further  obligation  of  acquittal,  that  is,  to  keep  the  tenant  free  from  mo- 
lestation, in  respect  of  the  services  due  to  the  lords  paramount :  on  the  part  of 
the  tenant,  to  an  obligation,  of  giving  his  lord  his  aid,  that  is,  his  military 
assistance,  and  services  in  defence  of  the  feud.  But  this  primitive  simplicity 
of  reciprocal  obligation,  was  soon  destroyed.  Different  sorts_  of  tenures  were 
established,  and  the  fruits  and  incidents  of  them  were  multiplied.  A  detail  ot 
these  does  not  seem  to  be  required  in  this  place ;  especially  as  a  full  and  mas- 
terly account  of  them  has  been  already  given  by  Mr.  justice  Blackstone. 

VI.  3.  The  branches  of  feudal  jurisprudence,  which  principally  concern  the 
tenures  of  Littleton  and  sir  Edward  Coke's  commentary,  and  which,  therefore, 
may  be  thought  such  as  at  once  call  for  and  limit  the  present  investigation,  are 
those  which  relate  to  the  inheritance  and  alienation  of  the  feud. — With  respect 
to  the  INHERITANCE  OF  THE  FEUD,  it  may  be  observed,  that,  at  tlic 
same  time,  that  succession  itself  prevails  in  every  civilized  country,  the  princi- 
ple, by  which  it  is  governed,  and  the  order  in  which  it  proceeds,  are,  every 
where,  different.  The  principle  and  order  of  the  feudal  succession,  are  peculiar 
to  that  system  of  polity.  Nothing,  perhaps,  will  show  these  in  so  strong  a  light 
as  bringing  them  into  contrast  with  the  doctrines  of  inheritance  in  the  civil  law. 
It  has  been  already  observed,  that,  in  the  Roman  law,  the  distinction  between 
real  and  personal  property,  except  in  the  term  of  prescription,  is  seldom  discover- 
able; but  that  in  the  feudal  law,  the  legal  incidents  and  qualities  of  the  two 
kinds  of  property  are  entirely  dissimilar.  This  is  no  where  more  striking,  th:in 
in  the  article  of  inheritance.  The  Roman  law  of  inheritance  embraces  both  kinds 
of  property,  equally  ;  the  feudal  law  of  inheritance,  is,  most  strictly,  confined  to 
real  property,  and,  (it  was  almost  said,)  turns  with  disdain,  from  all  property 
of  the  personal  kind.  By  the  Roman  law,  the  heir  was  a  person  instituted  by 
the  party  himself,  or,  in  default  of  such  institution,  appointed  by  the  law,  to 
succeed  both  to  his  real  and  personal  property,  and  to  all  his  rights  and  obliga- 
tions. In  the  feudal  law,  he  is  a  person  related  in  blood  to  the  ancestor;  and, 
in  consequence  of  that  relationship,  entitled,  either,  merely  by  act  of  law,  or, 
by  the  concurrent  effect  of  law  and  the  charter  of  investiture,  to  succeed,  at  the 
ancestor's  decease,  to  his  real  or  immovable  property,  not  given  away  from  him 
by  will.  In  the  civil  law,  he  was  considered,  as  representing  the  person  of  the 
deceased;  in  consequence  of  that  supposed  representation,  the  law  cast  on  him 
the  property  and  rights  of  the  deceased,  and  fixed  on  him  all  the  deceased's 

charges 


191.  a.  I    Of  Tenants  in  Common.     L.  3.  C.  4.  Sect.  300. 

charges  and  obligations.  Thus,  by  a  fiction  of  the  law,  the  person  of  the  ances- 
tor was  continued  in  the  heir,  so  that,  in  all  religious,  moral,  and  civil  rights 
and  obligations,  the  heir,  in  the  language  of  the  Koman  lawyers,  was  eadem  per- 
sona cum  defuncto.  In  the  feudal  system,  he  succeeded  to  the  real  property, 
only,  of  the  ancestor ;  and  this,  not  under  any  supposed  representation  to  him, 
or  in  consequence  of  any  supposed  continuation  of  his  person,  but  as  related  to 
him  in  blood,  and,  in  consequence  of  that  relationship,  as  a  person  designated, 
by  the  original  feudal  contract,  to  succeed  to  the  fief.  By  the  civil  law,  every 
person  was  considered  as  capable  of  instituting  an  heir;  where  the  party  died, 
v.ithout  instituting  an  heir,  the  law  introduced  a  necessary  heir.  Hence,  the 
distinction  in  that  law,  between  the  harcdcs  sid,  necessarii,  nati,  i\nd /acti.  In 
the  feudal  law,  it  was  an  acknowledged  maxim,  that  God  only  can  make  an  heir. 
Hence  the  opposite  maxim  of  the  feuds,  solus  Deus potest  facere  haredem,  non 
homo.  By  the  Roman  law,  in  consequence  of  the  fiction,  that  the  heir  was  the 
same  person  with  the  deceased,  he  was  bound  to  acquit  all  the  deceased's  obli- 
gations, not  only,  so  far  as  the  property  derived  by  him  from  his  ancestor 
extended,  but,  in  their  utmost  extent.  The  first  indulgence  granted  the  heir, 
was,  that,  the  pretor  allowed  him  a  certain  time,  in  which,  he  might  deliberate, 
>vhether  he  would  accept  the  succession  or  not;  at  the  expiration  of  which,  he 
■was  obliged,  either  absolutely  to  accept,  or  absolutely  to  renounce,  the  inhe- 
ritance. Justinian  established  still  further,  in  favour  of  the  heir,  a  liberty  of 
accepting  the  inheritance,  with,  what  was  termed,  the  benefit  of  an  inventor}^, 
that  is,  a  condition,  that  he  should  not  be  liable  beyond  the  value  of  the  pro- 
perty of  the  deceased.  Nothing  of  this  was  known  in  the  polity  of  the  feudal 
association.  In  the  intendment  of  that  law,  the  heir,  as  it  has  been  observed 
before,  came  under  the  original  feudal  contract :  He  claimed  nothing  as  a  gift 
from  the  ancestor :  He  derived  all  from  the  original  donor :  He  could  not, 
therefore,  be  liable  to  any  of  the  obligations  of  the  ancestor.  Another  maxim 
of  the  Roman  law  was,  that  the  representation  of  the  heir  to  the  ancestor, 
did  not  take  effect,  till  he  determined  his  election  to  accept  the  succession,  by 
what  was  termed,  an  additio  liocreditatis.  In  the  feud,  the  law  cast  the  right 
cf  heirship  on  the  heir,  immediately  upon  the  ancestor's  decease;  and  though, 
when  the  doctrine  of  alienation  was  introduced,  the  ancestor,  by  disposing  of 
all  his  property,  might  render  his  right  of  heirship  perfectly  nugatory,  so  far  as 
related  to  the  property  of  which  the  ancestor  died  seised  ;  yet,  upon  this  account, 
he  was  not  less  the  ancestor's  heir.  Thus,  by  the  Roman  law,  as  fixed  by 
Justinian,  it  was  at  the  party's  option,  whether  he  would,  or  would  not,  be  in- 
Tested  with  the  character  of  heir.  The  feud  left  him  no  option;  it  forced  the 
heritable  quality  on  him;  and  the  dead  man,  in  the  language  of  that  law,  gave 
seisin  to  the  living,  and  forced  on  him  the  character  of  heir.  Hence  the  maxim 
and  expression  of  the  feud,  le  mort  saisit  le  vif.  From  the  supposed  represen- 
tation in  the  Roman  law,  of  the  deceased,  by  the  heir,  it  became  a  maxim  of 
that  law,  that  no  person  could  die  testate,  as  to  part  of  his  property,  and  intes- 
tate as  to  the  other  part.  The  consequence  of  this  was,  that,  whoever  succeeded 
as  heir,  whether  he  took  the  entirety,  or  a  fractionary  part  only  of  the  property 
of  the  testator,  was  held,  in  consequence  of  that  heirship,  to  continue  the  person 
of  the  ancestor.  In  the  feudal  law,  after  testamentary  alienation  was  allowed, 
the  contrary  maxim  ever  prevailed  ;  the  party  might  die  testate,  as  to  one  part  of 
his  property,  and  intestate  as  to  another.  To  sum  up  the  contrast  in  a  few 
words; — by  the  Roman  law,  the  heir  was  a  person  appointed,  indiscriminately, 
by  the  law,  or  the  deceased,  to  represent  him ;  and,  in  consequence  of  that 
representation,  was  entitled  to  his  property,  and  bound  by  his  obligations.  In 
the  feudal  law,  the  heir  was  a  person  of  the  blood  of  the  ancestor,  appointed,  by 
the  original  contract,  to  the  succession,  or,  at  least  invested  with  a  capacity  of 
succession ;  and,  in  consequence  of  that  succession,  was  supposed,  more  by  the 
general  notions  of  mankind,  than  by  the  notions  of  the  feudal  polity,  to  repre- 
sent the  ancestor.  By  the  Roman  law,  the  heir  succeeded  to  the  property  of 
the  ancestor,  in  consequence  of  his  civil  representation  of  him,  and  supposed 

continuation 


L.  3.  C.  4.  Sect.  300.  Of  Tenants  in  Common.    [191.  ?. 

continuation  of  his  person:  In  the  feudal  law,  he  acquired  a  notional  repre- 
sentation to  the  ancestor,  in  consequence  of  the  feudal  succession.  In  the 
Roman  law,  real  and  personal  property  were  equally  the  subject  of  inheritance  : 
— in  the  feudal  law,  inheritance  was  confined  to  real  property.  The  Roman 
heir  claims,  as  such,  all  from  the  person  last  possessed,  and  nothing  from  the 
original  donor:  the  feudal  heir  claims,  as  such,  all  from  the  donor,  and  nothing 
from  the  person  last  possessed. 

VI.  4.  The  same  difference  prevailed  in  these  laws,  with  respect  to  the 
ORDER  OF  SUCCESSION.  By  the  Roman  law,  as  it  was  finally  settled  by 
the  Novels,  on  the  decease  of  an  intestate,  the  descendants,  of  whatever  degree, 
were  called  to  the  succession,  in  exclusion  of  all  other  relations,  whether  ascen- 
dants or  collaterals,  and  without  regard  to  primogeniture,  or  preference  to  sex. 
Where  the  intestate  left  no  descendants,  such  ascendants  as  were  nearest  in 
degree,  male  or  female,  paternal  or  maternal,  succeeded  to  his  estate,  in  exclu- 
sion of  the  remoter  heirs,  and  without  any  regard  to  representation ;  but,  with 
this  exception,  that,  where  the  deceased  left  brothers  and  sisters,  of  the  whole 
blood,  besides  ascendants,  all  succeeded  in  equal  portions,  in  capite  ;  and  here, 
if,  besides  ascendants,  the  deceased  left  children  of  brothers  or  sisters  of  the 
whole  blood,  the  children  succeeded  to  their  parent's  share,  by  representation, 
in  stirpes.  Where  the  intestate  left  no  descendants,  and  no  ascendants,  the 
law  called  the  collaterals  to  the  succession,  giving  preference  to  the  whole 
blood.  By  the  law  of  the  code,  if  no  one  was  left  in  the  descending,  ascending, 
or  collateral  lines,  the  husband  succeeded  to  the  estate  of  the  wife,  and  the  wife 
to  that  of  the  husband.  This  was  altered  by  the  law  of  the  Novels.  In  default 
of  a  legal  heir,  the  estate  became  a  res  caduca,  and  the  fiscus  or  exchequer 
succeeded.  Such  appears  to  be  the  general  outline  of  the  Roman  law,  res- 
pecting successions.  The  feudal  regulations  respecting  successions,  differed 
from  it,  in  almost  every  respect.  Originally  fiefs  were  granted  to  be  held  at  tlio 
will  of  the  donor,  and  were,  therefore,  resumable  at  his  pleasure;  then,  they 
were  granted  for  a  year  certain  ;  then,  for  the  life  of  the  grantee;  then,  to  such 
of  the  sons  of  the  grantee,  as  the  donor  should  appoint.  Then,  all  the  sons, 
and  in  default  of  sons,  the  grandsons  were  called  to  the  succession  of  the  fief;  in 
the  process  of  time,  it  was  opened  to  the  4th,  5th,  6th,  and  7th  generations,  and 
afterwards  to  all  the  male  descendants,  claiming  through  males,  of  the  first 
grantee;  and,  at  last,  was  suffered  to  diverge  generally,  to  collaterals.  But 
this,  as  to  such  collaterals  as  were  not  lineal  heirs  of  the  first  donee,  was  effected 
through  the  medium  of  a  fiction  completely  and  peculiarly  feudal.  When  a 
person  took  by  descent,  his  brothers,  though  in  the  collateral  line  of  relation- 
ship to  him,  were  in  the  direct  course  of  lineal  descent  from  the  ancestor.  In 
proportion  as  the  descent  from  the  ancestor  was  removed,  the  number  of  per- 
sons thus  claiming  collaterally  from  the  last,  and  lineally  from  the  first,  taker, 
was  proportionally  multiplied.  In  the  course  of  time,  the  first  taking  ancestor 
was  forgot,  and  then,  it  was  presumed,  that  all  who  could  claim  collaterally 
from  the  person  last  in  the  seisin  of  the  fee,  were  of  the  blood  of  the  origiiuil 
donee.  On  this  ground,  in  later  times,  when,  upon  the  grant  of  a  fief,  it  was 
intended,  that,  on  i^iilure  of  lineal  heirs,  the  fief  should  diverge  to  thecollatcral 
line,  it  was  granted,  to  be  held  with  the  incidents  and  properties,  with  which 
the  donee  would  have  held  it,  had  it  vested  in  him  by  descent,  in  a  line  of  trans- 
mission from  a  distant  and  forgotten  ancestor:  and,  among  them,  that  of 
transmissibility  to  collaterals. — This  general  heirship  of  fiefs  in  the  male  line, 
was  introduced,  in  France,  soon  after  the  succession  of  the  Capetian  line,  and, 
in  Italy  and  G-ermany,  during  the  period,  in  which  the  empire  was  pcf  sessed  by 
the  house  of  Franconia,  and  the  earlier  emperors  of  the  house  of  Suabia.  A 
similar  progress  in  the  descent  of  lands,  may  be  traced  in  the  jurisprudence  of 
our  own  country.  The  policy  of  most  feudal  countries,  has  shown  some  pre- 
ference of  the  whole  blood  to  the  half  blood,  and  a  great  unwillingness  to 
admit  females  into  the  fief.  In  England,  there  has  been  a  more  rigid  exclusion 
of  half  blood,  and  a  less  rigid  exclusion  of  the  female  line,  from  the  feudal 

succession, 


191.  a.J  Of  Tenants  in  Common.    L.  3.  C.  4.  Sect.  300. 

succession,  than  is  to  be  found  in  the  law  of  almost  any  other  country,  governed 
by  the  feudal  polity.  To  us  also,  it  seems  to  be  peculiar,  to  exclude  the  parent 
and  all  others  in  the  ascending  line,  from  the  immediate  succession  to  the  fief. 
But,  the  most  striking  point  of  difference  between  the  Roman,  and  the  feudal, 
course  of  succession,  is  the  prerogative  allowed  by  the  latter  to  primogeniture. 
To  the  eldest  son,  the  Roman  law  showed  no  preference ;  wherever  the  feudal 
polity  has  been  established,  he  has  been  allowed  several  important  prerogatives. 
In  England  primogeniture  obtained  in  military  fiefs,  as  early  as  the  reign  of 
William  the  Conqueror,  but  with  this  qualification,  that,  where  the  father  had 
several  fiefs,  the  jjrwivm joatris  feudujn,  only,  belonged  to  the  eldest  son.  In  the 
reign  of  Henry  the  2d,  primogeniture  prevailed  absolutely  in  military  fiefs,  and 
in  the  reign  of  Henry  the  3d,  or  soon  afterwards,  the  same  absolute  right  to  the 
succession  by  primogeniture,  obtained  in  socage  lands.  Thus,  in  all  countries, 
where  the  feud  has  been  established,  a  marked  distinction  in  the  order  of  suc- 
cession, has,  in  direct  opposition  to  every  principle  and  practice  of  the  Roman 
law,  been  shown  to  primogeniture.  Usu,  says  Zoesius,  ad  omnia  feuda  serpsit. 
ut  vel  ex  asse  majori cedant  vel major prcecipuum  aliquod  in  Us  haheant.  But,  it 
is  observable,  that  a  total  exclusion  of  the  younger  sons  is,  perhaps,  peculiar 
to  England.  In  other  countries,  some  portion  of  the  fief,  or  some  charge  upon 
it,  is,  in  many  cases  at  least,  secured  by  law,  to  the  younger  sons.  In  some 
places,  this  is  secured  to  them  for  their  lives  only ;  in  others,  their  descendants 
succeed  to  it.  Still,  the  eldest  son,  in  the  eye  of  the  law,  represents  the  fee. 
In  Spain,  the  patrimony  is  divided  into  fifteen  shares.  Three  shares,  that  is,  a 
fifth  of  the  whole,  are  first  subtracted ;  afterwards,  four  shares,  or  a  third  of 
the  remaining  twelve  shares.  This  fifth  and  third,  as  they  are  called,  are 
termed  a  mojoratiis,  and  are  at  the  free  disposition  of  the  parents;  the  re- 
maining shares  are  appropriated  to  the  children.  The  majoratus,  may  be,  and 
generally  is,  entailed  upon  the  eldest  son  of  the  family,  but  a  greater  portion 
of  the  patrimony  cannot  be  settled  on  him,  without  leave  from  the  crown. 
The  singular  nature  of  this  provision,  has  occasioned  a  particular  mention  of 
it  by  most  feudal  writers;  it  was  therefore  thought  proper  to  notice  it,  in  this 
place.  Any  further  mention  of  the  particular  customs  respecting  primogeniture, 
appears  unnecessary. 

VI.  5.  Another  striking  point  of  difference  between  the  Roman  and  the/eitf^a^ 
polity,  with  respect  to  real  property,  is,  the  contrast  between  THE  AB SOL  UTE 
D  0 MINION  0  VER  THE  INHERITANCE,  with  which  the  Roman  law  in- 
vested the  heir,  and  the  numerous  and  intricate  fetters,  with  which  the  feudal  juris- 
prudence (of  England  particularly)  has  permitted  it  to  be  bound.  The  Roman 
law,  (it  has  been  already  stated  at  some  length,)  permitted  a  person  to  appoint 
his  heir,  and  invested  him,  on  the  testator's  decease,  with  all  his  rights  and 
obligations.  Before  Justinian  introduced  the  benefit  of  the  inventory,  as  th^ 
heir,  by  accepting  the  inheritance,  subjected  himself  to  all  the  testator's  debts, 
the  ofl&ce  was  sometimes  refused,  as  dangerous.  This  gave  rise  to  the  vulgar, 
the  pupillar,  and  the  quasi-pupillar  substitution.  The  vulgar  substitution  was, 
v/here  the  testator  appointed  one  to  be  his  heir,  and,  if  he  refused,  substituted 
another  in  his  place.  These  conditional  substitutions  might  be  extended  to 
any  number  of  heirs.  When  they  were  made,  the  heirs  instituted  under  them, 
were  called,  in  succession,  to  accept  or  refuse,  the  inheritance.  When  once  an 
heir  accepted  the  inheritance,  it  vested  in  him  absolutely,  and  all  the  subse- 
quent substitutions  then  entirely  failed.  The  pupillar  substitution  was,  where 
a  father  substituted  an  heir  to  his  children,  under  his  power  of  disposing  of 
his  own  estate  and  theirs,  in  case  the  child  refused  to  accept  the  inheritance,  or 
died  before  the  age  of  puberty.  The  quasi-pupillar  substitution  was,  where  the 
children  past  puberty,  being  unable,  from  some  infirmity  of  mind  or  body,  to 
make  a  testament  for  themselves,  the  father,  in  imitation  of  the  pupillar 
substitution,  made  a  testament  for  them.  In  all  these  cases,  it  is  evident  the 
dominion  over,  and  substance  of,  the  inheritance  were  preserved  entire  and 

unqualified. 


L.  3.  C.  4.  Sect.  300.  Of  Tenants  in  Comnon.    [191.  a. 

unqualified.    In  two  instances,  and  in  these  only,  the  R  ).uan  law  admitted  an 
exception  to  their  integrity.     The  first  was  in  the  case  of  a  usufrnct ;  where  a 
right  was  given  to   one  person,  to  use  and  enjoy  the  profits  of  a  thing  belong- 
ing to  another.     The  second  was,  the  case  of  a  fidei  commissum,  when  the  in- 
heritance was  disposed,  in   whole,  or  in   part,  to  an   heir,  in   trust,   that  he 
should  dispose  of  it  to  another.     But  neither  of  these  devices  suspended  the 
absolute   vesting  of  the   inheritance.     An  usufruct    could  not    be   extended 
beyond  the  life  of  the  usufructuary.     Tliejhhi  conunissarius  (the  person  bene- 
ficially interested  in  the  inheritance)  could  compel  from  the  hares  fiduciarius, 
(the  trustee.)  a  transfer  of  the  inheritance  immediately  on  the  accruer  of  his 
right.     Thus  the  property  and  dominion  of  the  inheritance  absolutely  vested  in 
him  in  equity,  with  an  immediate  right  to  compel  a  legal  transfer  of  it.     In  this 
manner,  by  the  Roman  law,  the  heir  succeded,  in  every  case,  to  the  absolute 
property  of  the  inheritance,  and  to  all  the  rights  and  obligations  of  the  ancestor. 
It  should,  however,  be  observed,  that  this   account   of   the   simplicity  of  the 
Roman  law  with  respect  to   the  tenure,   if   it  may  be  so  called,  of  property, 
applies  to  it  only,  in  the  state  of  simplicity  in  which  it  was  placed,  by  the 
Trebellian  and  Pegasian  decrees.     In  a  further  part  of  this  annotation,  we  shall 
have  occasion  to   mention   the   alteration   occasioned  by   the  introduction  of 
fidei-commissary  substitutions.     These  are   to  be  considered,  as  a  departure 
from  the  genuine  spirit  of  the  Roman  law,  in  the  doctrines  respecting  inherit- 
ances.  See  Huheri  Frcdectt'ones  ad  Inst.  lib.  2.  tit.  23.  §  18.   From  that  spirit, 
nothing  could  be  more  different,  with  respect  to  the  tenure  and  modifications  of 
property,  than  the  regulations  of  the  feudal  law.     According  to  these,  the  heir 
derived  his  title,  no  otherwise  through  his  ancestor,  than  from  the  necessity  of 
mentioning  him  in  his  pedigree.     This  enabled  him  to  describe  himself,  as  an 
object  to  whom  the  succession  was  originally  limited.     Thus  he  was  a  nominee 
in  the  original  grant ;  he  took  every  thing  from  the  grantor,  nothing  from  his 
ancestor.     The  consequence  was,  that,  while  the  absolute  or  ultimate  owner- 
ship was  supposed  to  reside  in  the  lord,  the  ancestor  and  the  heirs  took  equally 
as  a  succession  of  usufructuaries,  each  of  whom,  during  his  life,  enjoyed  the 
beneficial,  but  none  of  whom  possessed,  or  could  lawfully  dispose  of,  the  direct 
or  absolute  dominion  of  the  property.     Thus,  while,  by  the  Roman  law,  and 
the  law  of  almost  every  other  country,  property  is  vested  in  the  possessor  solely 
and  absolutely,  every  species  of  feudal   property  is  necessarily  subject  to  the 
three  distinct  and  clashing,  though    concurrent,  rights  of  the  lord,  the  tenant, 
and  the  heir.     It  follows,  that,  by  the  original  principles  of  the  feudal^  law, 
Jie/s  could  neither  he  aliened  nor  charged  with  debts,  acd  in  direct  contradiction 
to  almost  every  other  system  of  law,  the  feudal  system  of  polity  made  land  un- 
alienable, and  absolutely  took  it  out  of  commerce. 

VI.  6.  THE  VARIOUS  MODES  WIUCH  HAVE  BEEN  USED,  hV 
THE  COUNTRIES  WHERE  THE  FEUD  HAS  BEEN  ESTABLISH- 
ED, TO  ELUDE,  OR  OVER  THROW,  THE  RESTRAINTS  UPON 
ALIENATION hvm  one  of  the  most  important  parts  of  feudal  learning.  The 
mode,  by  which  this  has  been  effected  in  England,  is  particular  to  itself.  It 
has  been  the  principal  occasion  of  the  striking  difference,  to  be  observed,  in  the 
feudal  jurisprudence  of  England,  and  that  of  other  countries.  One  artifice  to 
elude  the  feudal  restraint  upon  alienation,  seems  to  have  been  resorted  to,  by 
every  nation  where  the  feudal  polii-y  has  been  established, — ihnio?  suIj  in  feud  a- 
tion.  Its  effect,  its  aggrandizing  the  vassals,  and  rendering  them  independent 
of  the  throne,  has  been  already  noticed.  It  also  served  as  an  indirect  mode  of 
transferring  the  fief.  It  was  inhibited  in  England,  to  all  but  the  king's  vassals, 
by  the  statute  jitt'a  emptores  terrarum,  18  Edward  1st;  and  this  inhibition  was 
extended  to  the  king's  vassals,  by  the  statute  de prerogativa  rcyis,  17  Edw.  2. 
c.  G.  In  most  other  countries  it  is  still  allowed,  under  some  restrictions.  The 
chief  of  these  are,  1st.  That  it  must  be  real  subinfeudation,  and  not  a  sale,  or 
other  transaction,  under  the  appearance  or  colour  of  a  subinfeudation  3  2d.  That 

the 


191.  a.  ]     Of  Tenants  in  Common.    L.  3.  C.  4.  Sect.  300. 

the  sub-vassal  must  be  of  equal,  or  at  least,  of  suitable  rank  and  circumstances. 
And,  3dly.  The  conditions,  so  far  as  the  lord  is  interested  in  them,  must  be  the 
same,  as  those,  upon  which  the  original  investiture  is  granted.  In  other  res- 
pects, the  feudal  history  of  alienation  has  varied.  As  it  now  stands,  in  almost 
every  country,  the  lord's  consent  must  be  had.  But  in  some,  it  still  continues 
a  matter  of  favour,  in  others  it  is  a  matter  of  right,  to  which  the  tenant  is 
always  entitled,  on  paying  certain  fines  to  the  lord.  The  principal  of  these  are 
the  quint  and  the  lods  et  ventes.  These  the  lord  claims  on  every  sale.  In 
other  cases,  where  the  fief  is  transferred  from  one  to  another  the  lord  claims  the 
releviitm  or  droit  de  rachat,  which,  generally,  is  one  year's  produce  of  the  fief. 
In  many  countries,  where  the  tenant  sells  his  fief,  the  lord  has  a  Jtis  retractas, 
or  retrait  feodal,  by  which,  he  has  a  right  to  become,  himself,  the  purchaser  of 
the  fief,  on  reimbursing  the  stranger  the  price  paid  by  him,  for  the  purchase  of 
it,  and  the  costs  attending  the  purchase.  In  many  countries,  also,  the  right  of 
the  heir  is  consulted  by  giving  him  the  retrait  lignager^  by  which,  when  a  fief 
is  sold,  a  relation  of  the  vendor,  within  a  certain  degree  of  parentage,  may 
entitle  himself  to  repurchase  the  fief  by  an  oifer  of  the  purchase  money,  inter- 
est, costs,  and  expenses,  or  as  it  is  termed  in  the  writ,  offre  de  bourse,  deniers, 
loyaux  courts  a  i^arfaire.  Such  is  the  general  history  of  alienation  in  foreign 
countries.  The  history  of  alienation  in  England  is  very  different.  A  liberty 
of  alienating  lands  of  purchase,  at  least  where  the  party  had  no  son,  is  allowed 
by  a  law  of  Henry  the  1st,  and  expressly  recognized  by  a  law  of  Henry  the  2d. 
Sometime  afterwards,  it  obtained  generally,  with  little  or  no  limitation.  The 
indirect  mode  of  aliening,  through  the  medium  of  subinfeudation,  the  restraint 
of  it,  by  magna  cliarta,  and  its  total  abolition  of  the  statutes  quia  emptores, 
and  de  prerogativa  regis,  have  been  already  noticed. 

VI.  7.  But  while  the  restraints  upon  alienation,  so  far  as  it  was  contrary 
to  the  general  principles  of  the  feudal  tenure,  were  thus  gradually  removed, 
the  policy  and  private  views  of  individuals,  found  means  to  impose  new  re- 
strainst  upon  it.  This  was  done  by  the  introduction  of  conditional  fees  at  the 
common  law,  and  afterwards  by  the  INTRODUCTION  OF  ENTAILS. 
We  shall  consider  this  species  of  limitation  of  property  with  a  view  to  the  dif- 
ferent modes  of  it,  which  have  been  admitted  by  the  Roman  law,  and  by  the  laws 
of  France,  Spain,  Germany,  Scotland,  and  England.  With  respect  to  the  Ro- 
man law,  we  have  already  had  occasion  to  note  its  simplicity,  in  the  inherit- 
ance of  property  as  it  was  settled  by  the  Trebellian  and  Pegasian  decrees,  and 
its  alteration,  in  this  respect,  by  the  introduction  of  thefidei-commissa.  These 
gave  rise  to  successive  fidei-commissary  substitutions.  By  multiplying  these, 
and  by  prohibiting  each  substitute  from  aliening  the  inheritance,  property  was 
absolutely  taken  out  of  commerce,  and  fixed  in  a  settled  and  invariable  course 
of  devolution  in  particular  families.  There  is  reason  to  suppose  this  mode  of 
settling  property  was  never  common,  and  the  policy  of  Justinian  soon  inter- 
fered to  check  it.  By  the  159th  Novel,  he  restrained  fidei-commissary  substi- 
tutions to  four  degrees,  including  the  party  himself  who  instituted  the  substi- 
tution. With  the  third  substitute,  therefore,  the  power  of  the  testator  expired, 
the  absolute  dominion  vesting  absolutely  in  him.  This,  in  some  measure  restored 
the  law  ta  its  primitive  simplicity.  A  similar  progress  is  discoverable  in  the  his- 
tory of  French  Jurisprudence  respecting  Substitutions.  The  law  of  France  ap- 
pears to  have  generally  admitted  perpetual  substitutions.  The  ordonnance  of  Or- 
leans, in  1560,  restrained  them  to  two  degrees,  exclusive  of  the  instituant.  That 
ordonnance  not  having  a  retrospective  operation,  and  the  inconvenience  arising 
from  prior  substitutions  being  greatly  felt,  the  ordonnance  of  Moulins,  in  156(5, 
restrained  all  substitutions,  anterior  to  the  ordonnance  of  Orleans,  to  the  fourth 
degree  of  the  instituant.  The  ordonnance  of  1747  fixed  the  law  on  this  impor- 
tant branch  of  real  property.  It  was  framed  with  great  deliberation,  by  the 
chancellor  d'Aguesseau,  after  taking  the  sentiments  of  every  parliament  in  the 
kingdom,  upon  forty-five  di3"erent  questions  propo.sed  to  them  on  the  subject. 

These 


I 


L.  3.  C.  4.  Sect.  300.    Of  Tenants  in  Common.     [191.  a. 

These  questions,  and  the  answers  of  the  parliaments,  have  been  published  under 
the  title,  Questions  concernant  les  Substitutions,  Toulouse,  1770.     The  ordon- 
nance  of  1747  confined  substitutions,  with  some  exceptions,  to  two  degrees,  and 
directed  the  degrees  to  be  computed,  by  the  individuals,  in  whom  the  sub- 
stitution vested.     Upon  this,  it  was  held,  that  if  the  testator  appointed  several 
persons,  jointly,  to  the  inheritance,  they  formed,  together,  but  one  degree;  if 
he  appointed  to  it  several  persons  successively,  though  in  the  same  degree  of 
kindred,  as  brothers  or  sisters,  each  person  in  whom  the  succession  vested, 
formed  one  degree.     The  mode  of  settlement  used  in  Spain,  by  what  is  termed 
a  Majoratus,  has  been  already  noticed.     In  Gcrnianjj,  the  restraints  imposed  by 
the  feudal  law,  on  the  alienation  of  property  confined  by  the  original  investiture, 
to  a  particular  channel  of  descent,  still  prevail;  so  that  the  same  intricate 
entails  subsist  with  them,  as  with  us ;  without  those  modes  of  eluding  them 
which  the  laws  of  England  have  sanctioned.     The  tailzies  or  entails  of  Scotland 
appear  still  more  intricate.     The  least  restrictive  of  these  is  called  a  Simple 
Destination.     It  is  defeasible  and  attachable  by  creditors,  so  that  it  amounts  to 
no  more  than  a  designation  who  is  to  succeed  to  the  estate,  in  case  the  tem- 
porary possessor  neither  disposes  of  it,  nor  charges  it.     The  next  degree  of 
tailzie,  is  a  tailzie  with  prohibitory  clauses.     The  proprietor  of  an  estate  of 
this  nature  cannot  convey  it  gratuitously,  but  he  may  dispose  of  it  for  onerous 
causes,  and  it  may  be  attached  by  creditors.     The  substitutes,  however,  as 
creditors  by  virtue  of  the  prohibitory  clause,  may  by  a  process  in  Scotland, 
term^ed  an  inhibition,   secure   themselves  against  future  debts  or  contracts. 
The  third  and  strictest  degree  of  tailzie,  is  a  tailzie  guarded  with  irritant  and 
resolutive   clauses.     This  is  a   complete   bar  to  every  species   of  alienation, 
voluntary  or  involuntary.     The  efficacy  of  these  clauses,  both  against  the  heir, 
and  the  creditors  of  the  tenant  in  tail,  aliening,  was  established  in  1662,  by  a 
solemn  decision  of  the  judges  of  Scotland,  in  the  case  of  the  viscount  Stormont 
against  the  creditors  of  the  earl  of  Anandale ;  and  that  decision  was  sanctioned 
by  a  statute  of  the  Scottish  parliament  in  1685.     This  mode  of  entail  appears 
to  be  greatly  discouraged  by  the  judicature  of  the  country;  and  modes   of 
eluding  it  have  been  discovered,  and  allowed  in  their  courts  of  justice.     With 
respect  to  Eiujlish  entails,  we  have  taken  notice  of  the  maxim  of  the  Roman 
law,  that  no  man  can  name  an  heir  to  succeed  to  his  heir;  and,  of  the  opposite 
maxim  of  our  law,  that  Grod  only  can  make  an   heir,  not  man.     The  latter 
maxim  was  understood,  with  this  qualification,  that,  though  the  party  could  not 
introduce  a  person  into  the  heirship  of  the  fief,  who  was  not  originally  capable 
of  inheriting  the  fief,  by  being  of  the  blood  of  the  donee,  still  he  might  give  a 
preference  to  a  particular  class  of  persons,  falling  within  that  description,  and 
might  exclude  others.     Thus,  in  England,  according  to  sir  William  Blackstone, 
(lib.  2.  c.  7.  s.  2.)  as  in  all  other  countries,  where  fiefs  have  prevailed,  they 
might  originally  be  limited  to  the  male,  either  in  preference  to,  or  in  utter 
exclusion  of,  the  female  descendants  of  the  party.     In  the  same  manner,  they 
might  be  limited  to  a  male  and  his  descendants,  by  a  particular  wife,  or  to  a 
female  and  her  descendants,  by  a  particular  husband,  or  to  both  the  parents 
and  the  heirs  of  both  their  bodies.    These,  at  the  common  law,  were  all  termed 
Estates  in  fee-simple  conditional.    The  condition,  from  wliich  these  estates  took 
their  appellation,  did  not  prevent  the  fee  from  vesting  in  the  donee,  immedi- 
ately upon  the  gift;  it  only  authorized  the  donor  to  re-enter,  if  the  party  had 
not  issue,  or,  if,  having  issue,  the  issue  afterwards  failed,  and  neither  the  donee 
nor  the  issue  aliened.     Upon  this  principle,  it  was  considered  to  suspend  the 
power  of  absolute  alienation,  till  the   birth  of  issue.     But  upon  the  birth  of 
issue,  the  party  had  the  same  power  of  alienation  over  the  conditional  fee,  as 
he  had  over  an  absolute  fee.     The  statute  de  donis  conditionalibus  took  away 
this  power.     It  did  not,  however,  aifect  the  estate  of  the  donee,  in  any  other 
respect.     The  consequence  of  this  was,  that,  a  tenant  in   tail  was  as  much 
seised  of  the  inheritance,  after  the  statute  de  donis,  as  a  tenant  in  fee-simple 

conditional, 


191.  a.]    Of  Tenants  in  Common.     L.  3.  C.  4.  Sect.  300. 

conditional,  was,  before  it.  Tiius,  therefore,  an  estate  of  inheritance  remained 
in  the  donee;  but,  a  particular  description  of  heirs  only  being  entitled  to  take 
under  it,  it  received  the  appellation  of  an  estate  tail,  that  is,  an  estate  docked, 
cut  off,  or  abridged,  in  contradistinction  from  the  estate  in  fee-simple  absolute. 
Thus,  the  fee  was  preserved  to  the  issue,  while  there  was  issue  to  take  it,  and 
was  preserved  to  the  donor,  when  the  issue  failed.  This  reversionary  right  of 
the  donor  was  soon  found  to  be  susceptible  of  the  same  modifications,  as  a  pre- 
sent estate,  and,  therefore,  limitations,  either  of  the  whole  reversion,  or  of 
partial  estates  out  of  it,  were  made  to  strangers.  It  frequently  happened,  that, 
after  a  limitation  to  one  series  of  heirs,  another  series  of  heirs  was  substituted, 
to  take  the  fief,  on  the  failure  of  the  first  series.  The  first  person  then,  to  whom 
this  subsequent  series  was  limited,  was  made  the  stock,  or  terminus,  of  this  sub- 
sequent line  of  inheritance.  In  these  cases,  the  substitute  did  not  take  in 
quality  of  heir  to  the  last  taker,  but  as  a  new  purchaser  under  the  original 
donor.  Thus,  in  dii'ect  opposition  to  every  genuine  principle  of  the  Roman 
law,  endless  substitutions  were  introduced,  not  only  of  individuals,  but  of  whole 
lines  of  descendants,  and  the  estate  being  thus  unalienably  preserved  to  the 
issue,  there  was  still  a  more  pointed  opposition,  to  the  maxim  of  the  Roman 
law,  that  the  heir  necessarily  succeeded  to  the  obligations  of  the  deceased. 

VI.  8.  These  new  restraints  upon  property  were  never  favourably  received, 
and  \arious  ARTIFICES  WERE  USED  TO  ELUDE  THEM.  One  of 
these,  was  carried  into  execution,  through  the  medium  of  a  cliscontinvance.  It 
has  been  observed,  that,  though  the  statute  de  donis  took  away  the  power  of 
lawful  alienation,  it  did  not  suspend  the  vesting  of  the  fee.  The  alienation, 
therefore,  of  the  donee  tenant  in  tail,  was  no  forfeiture ;  and  the  alienee,  as  he 
took  his  conveyance  from  a  person  seised  of  the  fee,  was  considered  as  coming 
in,  under  a  lawful  transfer  of  the  inheritance.  Now,  it  was  an  established  rule 
of  law,  that,  whenever  any  person  acquired  a  presumptive  right  of  possession, 
his  possession  was  not  to  be  defeated  by  entry.  The  consequence  of  this  was, 
that,  in  these  cases,  the  alienation  was  unimpeachable  during  the  life  of  the 
alienor,  and,  after  his  decease,  the  heir  could  not  assert  his  title  by  the  sum- 
mary process  of  entry,  but,  was  driven  to  the  expensive  and  dilatory  process  of 
a  formedon ;  this  was  termed  a  discontinuance.  The  expense  and  delay  attend- 
ing a  formedon  frequently  prevented  the  tenant  in  tail  from  resorting  to  it,  to 
assert  his  right.  In  the  course  of  time,  the  period  for  asserting  it  elapsed, 
and  thus,  therefore,  virtually,  the  discontinuance  proved  a  bar  to  the  entail. 
Another  mode  of  eluding  estates  tail  was,  by  icarranty.  When  lands  were 
conveyed  from  one  to  another,  the  grantor,  for  the  greater  security  of  the 
grantee,  usually  warranted,  that  is,  entered  into  a  covenant  to  defend  the 
possession  to  the  grantee,  and,  in  case  of  eviction,  to  make  him  a  recompense. 
This  obligation  of  the  ancestor  was  considered  to  be  a  covenant  real,  and 
therefore,  on  his  decease,  descended  on  the  heir.  Thus,  it  frequently  happened, 
that,  on  the  death  of  the  ancestor,  his  contract  of  warranty  descended  on  the 
person,  who  would,  otherwise,  be  entitled,  as  his  heir,  to  the  lands  warranted, 
so  that,  the  obligation  of  warranty,  and  the  right  to  the  lands  warranted,  met 
in  the  same  person.  The  consequence  of  this  was,  that,  as  heir  in  tail,  he  was 
entitled  to  the  lands;  as  heir  general,  he  was  bound  to  defend  the  title  of  his 
ancestor's  alienee :  thus,  if,  on  the  one  hand,  he  was  entitled  to  recover  the 
lands,  the  alienee  was  entitled,  on  the  other,  to  recover  an  equivalent  recom- 
pense from  him.  To  prevent  this  circuity,  it  was  held,  that  the  obligation  to 
warranty,  precluded  him  from  claiming  the  lands  warranted.  Against  this,  in 
some  cases,  the  statute  de  donis.,  provided.  The  general  doctrine  was,  that 
where  the  heir  claimed,  as  heir,  the  lands  warranted,  he  was  bound  by  the  war- 
ranty, in  those  cases  only,  where  he  inherited,  from  the  ancestor,  fee  simple 
lands  of  equal  value;  but,  where  he  claimed  as  purchaser,  he  was  bound  by 
the  warranty,  though  no  such  lands  descended  upon  him.  This  is  the  mean- 
ing of  the  maxim,  that  warranty,  when  lineal,  is  a  bar  with  assets;  and  when 

collateral, 


L.  3.  C.  4.  Sect.  300.     Of  Tenants  in  Common.    [191.  a. 

collateral  is  a  bar  without  assets,  to  the  right  of  the  tenant  in  tail,  on  whom 
it  devolved.  By  these  artifices,  the  force  of  entails  was  eluded.  In  the  progress 
of  time,  methods  were  discovered,   by  which    the    law  allowed    them   to  be 
obsolutely  destroyed.     The  first  of  these  have  received  the  name  of  a  common 
recovery.     In  the  language  of  the  courts,  a  recovery  is  the  effect  of  a  sentence, 
in  a  solemn  judgment,  whereby  the  party  is  restored  to  a  former  right.     In  the 
particular  language  of  our  courts,  when  applied  to  judgments  in  adversary 
actions,  it  is  the  effect  of  a  sentence,  by  which,  in  a  suit  instituted  for  the 
recovery  of  an  estate  claimed  by  the  party,  judgment  is  given  him,  that  he 
shall  recover  it,  according  to  his  claim.     In  a  suit  of  this  nature,  when  really 
adversary,  the  judgment,  whether  given  after  defence,  or  upon  default,  equally 
bound  the  right  to  the  land.     Of  this,  tenants  in  tail  availed  themselves,  to 
deliver  their  estates  from  the  entails  to  which  they  were  subject.     They  per- 
mitted the  entailed  lands  to  be  recovered  against  them,  on  a  fictitious  process, 
but  with  a  secret  confidence,  reposed  in  the  recoveror,  that  after  the  recovery 
was  completed,  he  should  reconvey  the  lands  to  the  party  in  fee  simple ;  and 
•in  the  meantime,  permit  him  to  take  the  profits  of  them.     Another  mode,  by 
which  the  destruction  of  entails  was  allowed  to  be  effected,  was  the  application 
of  the  legal  operation  of  fines.     In  the  notion  of  our  courts,  a  fine  is  a  com- 
promise, with  the  leave,  and  under  the  sanction  of  the  court,  of  a  real  action, 
for  the  recovery  of  land.     It  is  common  to  all  courts  of  justice,  to  permit  suits 
commenced  in  them,  to  be  compromised,  and  to  give  their  sanction   to  the 
comp^-omise.     In  the  civil  law,  and  in  the  feudal  law  of  other  countries,  this 
species  of  compromise  is   termed  a  transaction.     The  process  itself,  therefore, 
we  have  in  common  with  them.     But,  it  is  peculiar  to  our  law,  to  use  it  as  a 
mode  of  eluding  the  restraints  imposed  by  the  law  of  the  land  on  the  alienation 
of  real  property.     A  writ  is  brought  against  the  tenant  in  tail,  by  which  the 
party  suing  out  the  writ  demands  the  lauds,  against  the   tenant,  on  his  sup- 
posed previous  agreement  or  covenant,  to  convey  the  land  to  him.     The  tenant 
is  understood  to  be  satisfied  with  the  justice  of  the  claim,  and  therefore  applies 
for  the  license  of  the  court,  to  make  the  matter  up.     This   is  granted.     The 
parties  thereupon  enter  into   a  concord   or  agreement.     By  this,  the   tenant 
acknowledges  the  lands  to  be  the  right  of  the  demandant.     This  acknowledg- 
ment, being  made  with  the  leave,  and  under  the  sanction,  and  entered  on  the 
records,  of  the  court,  had  the  effect  of  a  judgment.     Of  this  process,  tenants 
in  tail  availed  themselves,  to  bar  their  estates  tail,  in  the  same  manner  they  did 
of  judgments;  they  procured  a  fictitious  suit  to  be  instituted  against  them,  and 
settled  it,  by  a  fictitious  compromise,  in  which   they  acknowledge  the  right  to 
be  in  the  demandant ;  with  the  same   secret  confidence  reposed  in  him,  that 
he  should  hold  the  same   in  trust  for  them,  and  convey  it  according  to  their 
directions.     Thus,  through  the  medium  of  a  collusive  suit  and  judgment,  which 
are  now  called  a  common  recovery,  in  one  instance,  and  of  a  collusive  suit  and 
compromise,  which  are  now  called  a  fine,  in  the  other,  entails   were   totally 
defeated.       It  is  unnecessary,  here,  to  trace  the  steps  by  which   this  has  been 
effected.     Common  recoveries  were  originally  a  deceit  upon  courts  of  justice. 
When  the  sanction  of  the  courts  was  first  given  them,  it  was  done  indirectly, 
with  great  caution,  and  some  degree  of  artifice.     It  was  not  till  the  reign  of 
Edward  the  4th,  that   they  obtained  the   unequivocal   sanction  of  a  solemn 
decision  of  a  court :  and  it  was  a  much  later  period,  before  their  effects  were 
recognised  by  the  legislature  of  the  country.     The  introduction   of  fines,  was 
effected  in  a  much  bolder  manner.     The  statute  de  donis  had  said  fines  should 
be  null ;  the  statute  of  the  4  of  Henry  7,  or  at  least  that  of  the  32  of  Henry  8, 
said  they  should  be  valid.     The  different  effects  of  a  fine  and  a  recovery  do  not 
fall  within  this  inquiry.     (Mr.  Cruise's  valuable  treatises  upon  them  are  well 
known.)     It  seems   sufiicient  to  observe,  generally,  that  a  fine  is  binding  on 
the  issue  in  tail  only ;    a  recovery  is  binding   both   on  the  issue  and   those 
claiming  in  reversion  or  remainder.     A  still  more  summary  and  easy  opening 
of  entails  has   been   granted  by  the  legislature,  in  favour  of  the  crown,  by 

33  Hen.  8. 


191.  a. J     Of  Tenants  in  Common.    L.  3.  C.  4.  Sect.  300. 

33  Hen.  8.  c.  39.  in  favour  of  the  creditors  of  traders,  by  the  21  Jac.  1.  c.  19. 
whereby  the  commissioners  are  authorised  to  sell  the  bankrupt's  entailed 
lands;  in  favour  of  general  creditors,  by  the  acts  for  the  relief  of  insolvent 
debtors ;  and  in  favour  of  charitable  donations,  by  the  43  Eliz.  c.  4. 

VI.  9.  The  alienation  hitherto  spoken  of,  except  that  referred  to  in  the  last 
observation,  has  been  confined  to  cases  where  it  is  the  act  of  the  party  himself; 
and  is,  therefore,  termed  voluntary  alienation.  But,  in  many  cases,  it  is  pro- 
duced by  the  act  of  law  against  the  party's  own  will.  In  these  cases,  it  is 
termed  INVOL  UNTAR  YALIENA  TION.  Here  its  eifects  must  be  considered, 
with  respect  to  the  party  himself,  his  heir,  and  the  special  prerogative  of  the  king. 
In  every  instance  the  genius  of  the  feud  appears.  ^Vlth  respect  to  the  party 
himself,  the  tendency  of  the  feud  to  secure  to  the  lord  the  services  of  the 
tenant,  and  to  take  landed  property  from  commerce,  has  been  noticed.  It  was 
a  consequence  of  those  principles,  that  the  party  was  not  at  liberty  to  subject 
either  himself,  or  his  lands,  to  the  payment  of  his  debts.  When,  therefore,  at 
the  common  law,  a  person  sued  a  recognizance,  or  judgment  for  debt,  or 
damages,  he  could  neither  take  the  body,  nor  the  lands  of  the  debtor,  except 
in  some  special  instances,  into  execution.  He  could  only  take  in  execution 
his  goods  and  chattels,  and  the  profits  of  his  lands.  For  those  the  law  gave 
him  the  fieri  facias,  by  which  the  sheriff  was  commanded  to  cause  the  sum,  or 
debt  recovered,  to  be  made  out  of  the  goods  and  chattels  of  the  debtor;  and 
the  levari  facias,  by  which  the  sheriff  was  ordered  to  seize  the  debtor's  goods, 
and  receive  the  rents  and  profits  of  his  lands,  till  the  creditor  was  satisfied. 
Thus,  at  the  common  law,  neither  the  person  nor  the  lands  of  the  debtor  could 
be  attached  for  debt.  But,  by  the  25th  of  Edw.  3d.  c.  17.  the  body  of  the 
debtor  was  made  liable,  by  a  writ  of  cajnas  ad  satisfaciendum,  to  imprisonment, 
till  the  debt  was  satisfied;  and  the  statute  of  Westminster  2.  13th  Edw.  1st. 
ch.  18.  granted  the  writ  of  elegit,  by  which  the  defendant's  goods  and  chattels 
are  delivered,  to  the  creditor,  at  an  appraised  value ;  and,  if  these  are  not 
sufficient,  then  the  moiety  or  one-half  of  the  freehold  lands  of  the  debtor,  are 
delivered  to  the  creditor,  to  be  retained  till  the  debt  is  levied,  or  the  debtor's 
interest  in  the  land  is  expired.  Afterwards,  under  the  statute  de  mercatorihus, 
13  Edw.  1,  the  merchant  might  cause  his  debtor  to  appear  before  the  mayor 
of  London,  or  any  of  the  other  persons  mentioned  in  the  act,  and  there  acknow- 
ledge his  debt.  This  was  called  a  recognizance.  If  the  debt  was  not  paid  at 
the  time  appointed,  the  recognizance  was  held  to  be  forfeited,  and  the  body, 
lands  and  goods  of  the  debtor,  were  to  be  delivered  to  the  merchant  creditor, 
in  execution  to  compel  payment  of  the  debt.  The  process  by  which  this  was 
done,  was  called  an  extent,  because  the  sheriff  was  to  cause  them  to  be 
appraised,  to  their  full  or  extended  value,  before  he  delivered  them  to  the 
creditor.  By  the  statute  of  the  27  Edw.  3.  c.  9.  a  similar  process  for  the 
recovery  of  debts  was  provided  for  those,  whose  debts  were  acknowledged 
before  the  mayor  of  any  of  the  towns,  where  the  staple  was  held.  These 
securities  are  generally  known  by  the  short  appellation  of  statutes  merchant 
and  statutes  staple.  From  their  nature,  they  were,  at  first,  appropriated  to  the 
commercial  part  of  the  community.  By  the  23d  Hen.  8.  a  similar  security, 
by  a  recognizance  in  the  nature  of  a  statute  staple,  was  extended  to  the  com- 
munity at  large.  The  laws,  respecting  bankrupts,  seem  now,  to  have  made  the 
landed  property  of  merchants  and  other  tradesmen,  generally  subject  to  their 
debts.  The  statutes  respecting  fraudulent  conveyances  and  devices  have  pro- 
ceeded, some  way  towards  making  lands  generally  liable.  It  may  not  be 
improper  to  close  this  account  of  involuntary  alienation  by  an  account  of  invo- 
luntary alienation  in  the  Roman  law,  as  it  is  succinctly  stated  in  the  Digest, 
lib.  42.  tit.  1.  Primo  quidem  res  mobiles  aru'males piynori  capijuhentur,  max 
distrahi ;  quarum pretium  si  svffecerit,  hene  est,  si  nan  snffccerit,  etiam  soli 
pignora  capijuhentur  et  distrahi.  Quod  si  mdla  moventia  sint,  apignorihus  soli 
initium  faciunt.  Quod  si  nee  quce  soli  sunt,  sufficiunt,  vcl  nulla  sint  soli  pignora, 
tunc  pervenietur  etiam  ad  Jura.     Si  pignora  qucB  capta  sunt,  emptorem  nan 

inveniunt, 


L.  3.  C.  4.  Sect.  300.     Of  Tenants  in  Common.     [191.  a. 

inveniant,  rescriptum  est  ut  addicantur  ipsi  cut  quis  condemnatiis  est.     Addt- 
cantur  autem  e.a  quantitate  qua  dehetur. 

With  respect  to  the  heir, — it  has  been  observed,  as    one  of  the  most  striking 
peculiarities  of  the  feudal   system,  that  the  heir  claimed  nothing  from  the 
ancestor,  but  came  in   under  the  original  feudal  contract.     The  consequence 
was,  that,  originally,  though  on   the  decease  of  the  debtor,  the  executor  was 
answerable,  as  far  as  he  had  assets,  the  heir  was  not  answerable  in  respect  of 
the  lands  descended.     But,  after  the  free  alienation  of  land  was  allowed,  the 
attachment  of  it,  in  the  hands  of  the  heir,  for  the  debt  of  his  ancestor,  followed 
as  a  necessary  consequence.     But,  here  again,  the  principal  of  the  feudal  law 
introduced  a  distinction,  which,  with  some  qualifications,  prevails  at  this  day; 
that,  the  assets  in  the  hands  of  the  executor,  are  liable  generally  to  the  ances- 
tor's debts  of  every  kind,  but  the  assets  in  the  hands  of   the  heir  are  liable 
only  to  debts  of  record,  and  debts  by  specialty,  in  which  the  heir  is  named ; 
to  the  former,  in  respect  of  the   lien,  which  the  process  of  the  court  created, 
on  the  lands  themselves ;  to  the  latter  on  the   supposition,  that  the  heir  was 
comprehended  in  the  original  contract.     For  the  ancestor's  debts  by  simple 
contract,  in  opposition  to  the  Roman  law,  and  to  the  most  obvious  principles  of 
natural  justice,  the  heir  still  remains  not  liable.     As  to  involuntary  alienation, 
in  respect  to  the  king,  it  has  been  observed,  that,  in  the  case  of  a  common  per- 
son, the  body  of  the  debtor  was  not  liable   to  execution ;  but,  in  the  case  of 
the  king,  it   was  different;  for,  at  the  common   law,  the  body  of   the  king's 
debtor  is  generally  supposed  to  have  been   always  liable  to  execution.     Yet  it 
seems  singular,  that,  when  the  statute  of  magna  charta  restrained  the  king 
from  seising  a  man's  land  for  debt,  it  should  leave  him  at  liberty  to  seise  his 
person.  In  the  course  of  time,  however,  it  is  certain,  that  the  body  of  the  debtor 
might  be  seised,  and  that,  after  the  law  made  it  liable  for  the  debts  of  the  sub- 
ject, the  king  had  these  special  prerogatives,  that  he  could  protect  his  debtor 
against  the  suits  of  his  other  creditors  ;  and  that,  at  the  common  law,  he  had  a 
right  to  the  custody  of  his  debtor's  person,  in  another  prison,  at  the  suit  of  the 
subject.  By  the  common  law  also,  all  the  goods  and  chattels  of  the  king's  debtor 
might  be  sold  for  the  payment  of  his  debts.  But  the  most  important  of  the  pre- 
rogatives of  the  crown,  at  the  common  law  was,  that  in  the  king's  case,  execution 
issued,  not  only  against  the  goods  and  chattels,  but  against  the  lands  of   the 
debtor.     Another  important  prerogative  was,  in  the  case  of  rent,  for  which  the 
king  might  distrain  on  any  of  the  lands  of  the  debtor.  He  had  other  important 
prerogatives,  with  respect  to  priority  and  preference  in  execution,  and  satisfac- 
tion of  his  debts,  a  minute  investigation  of  which  does  not  fall  within  the  sub- 
ject of  this  discussion.     These  extensive  prerogatives  have  been  considerably 
.increased  by  the  statute  law  of  the  realm.     By  the  3Bd  Henry  8.  c.  39.  all 
obligations  made  to  the   king,  are  to   have  the  same  force,  and  to  be  attended 
with  the  same  remedies,  to  recover  them,  as  a  statute  staple.     By  the  13  Eliz. 
c.  4.  the  lands  of  treasurers,  receivers,  and  other  accountants   to   the  crown, 
were  made  liable  to  execution  for  debts  to  the  crown,  in  the  same  manner  as 
if  the  party  had  acknowledged  a  recognizance,  under  the  statute  of  Henry  8. 
A  doubt  arose  upon  this  statute,  whether  a  sale  might  be  made  under  it,  after 
the   death  of   the  accountant  or  debtor.     To   remedy  this,  the   explanatory 
statute  of  the  27th  Eliz.  c.  3.  was  passed,  by  which  a  power  of  sale,  after  the 
death  of  the  debtor,  was  expressly  given.     Afterwards,  by  an  act  made  in  the 
39th  year  of  queen  Elizabeth,  this  explanatory  act  was  repealed,  and  a  new 
exposition  was  made  of  the  statute  of  the  13th  Eliz.  with  various  new  provisions. 
But  the  act  of  the  39th  Eliz.  being  only  temporary,  and  having  expired  early 
in  the  reign  of  James  the  first,  the  explanatory  act  of  the  27th  of  Eliz.  was 
revived  ;  but  it  fell  into  disuse,  and  when  it  came  to  be  examined,  on  occasion 
of  the  late  exertions  made  for  the  recovery  of  the  crown  debts,  it  was  found 
defective.     This  gave  rise  to  the  act  of  the  25th  of  his  present  majesty,  c.  35. 
by  which  the  court   of  exchequer  is  authorized,  on   the    application  of  his 

majesty's 


191.  a.J     Of  Tenants  in  Common.     L.  3.  C.  4.  Sect.  300. 

majesty's  attorney  general,  in  a  summary  way,  by  motion,  to  order  the  estates 
of  crown  debtors,  which  should  be  extended  by  any  writ  of  extent,  or  diem 
clausit  extremum,  to  be  sold  for  the  payment  of  the  debts.  Thus  the  law  ap- 
pears to  stand  at  present,  on  the  involuntary  alienation  of  land,  with  respect 
to  the  debts  due  to  the  crown. 

VI.  10.  As  to  TESTAMENTARY  ALIEN ATIOX ;  the  influence  of  feudal 
principles,  on  this  branch  of  aliention,  is  still  strongly  felt.  It  has  been  observed, 
that,  by  the  Roman  law,  a  will  was  an  appointment  of  an  heir ;  and  he  was 
considered,  at  the  death  of  the  testator,  as  universal  successor  to  all  the  pro- 
perty, rights,  and  obligations,  of  the  deceased.  Testamentary  alienation,  like 
every  other  alienation,  was  prohibited  by  the  genius  and  law  of  the  feuds.  By 
what  steps  it  prevailed  here,  is  so  happily,  and  so  concisely  explained,  in  a  note 
of  the  present  Editor's  most  learned  predecessor  in  this  work,  (note  1  to  page 
111.  b.)  as  to  render  any  deduction  of  it  unnecessary  in  this  place.  To  a  peru- 
sal of  that  note,  the  reader  is  therefore  invited.  It  remains  to  observe,  that, 
after  the  testamentary  power  over  land,  was  introduced,  a  devise  of  lands 
was  not  considered  to  operate  as  an  appointment  of  a  party  to  be  a  general 
heir  of  the  testator,  as  in  the  Roman  law ;  but  was  considered  to  operate  as  a 
legal  conveyance  of  the  lands  themselves.  See  lord  Mansfield's  argument  in 
Hogan  V.  Jackson,  Covvp.  299,  In  consequence  of  this,  many  of  the  requi- 
sites to  other  legal  instruments  are  requisites  in  wills.  Thus,  as  to  the 
efficacy  of  a  deed,  for  the  transfer  of  real  property,  it  is  necessary,  that  the 
grantor  should  have  the  seisin  of  the  lands  conveyed  ;  so,  as  to  the  efficacy  of 
a  will,  it  is  necessary,  that,  at  the  time  of  making  his  will,  the  devisor  should 
have  the  seisin  of  the  lands  devised,  or  at  least  that  kind  of  inchoate  seisin  or 
title,  which  is  conferred  by  a  contingent  remainder.  The  consequence  of  which 
is,  that,  while  a  Roman  will  operates  on  all  the  property  of  the  deceased,  with- 
out any  regard  or  distinction,  as  to  property  acquired  by  the  testator,  before  or 
after,  the  making  of  his  will ;  by  the  law  of  England,  a  will  cannot  operate 
on  any  freehold  lands,  of  which,  at  the  time  of  making  of  the  will,  the  party 
has  not  this  species  of  seisin.  Another  consequence  of  the  notion,  that,  a  will 
affecting  lands,  is  merely  a  species  of  conveyance,  is,  that,  as  by  the  law  of 
England,  a  fee  simple  cannot  be  created  without  words  of  inheritance  in  the 
original  donation  or  grant,  so  by  the  same  \si^,  ivords  of  inheritance  are  ec{Udi\\y 
necessary  to  the  creation  of  a  fee  hy  will.  The  only  difference  is,  that  certain 
technical  words  are  required  by  law,  to  the  creation  of  an  estate  in  fee,  by 
deed ;  but  in  wills,  they  may  be  dispensed  with,  and  supplied,  by  any  words, 
sufficiently  denoting  the  intention  of  the  testator.  Here  the  subject  appears  to 
draw  to  a  conclusion. 

VI.  11.  The  reader  has  been  presented  with  some  of  the  most  striking  cir- 
cumstances in  the  history  and  principles  of  the  feudal  law,  particularly  so  far 
as  they  affect  the  landed  property  of  this  country.  It  remains  only  to  state 
some  of  the  most  striking  circumstances,  7xV  THE  GENERAL  HISTORY 
OF  ITS  DECLINE.  It  has  been  shown,  that  the  peculiar  ingredient  of  the 
feud  was,  the  connection  between,  and  the  reciprocal  obligations  of,  the  lord, 
and  the  tenant.  Whatever  interrupted  or  relaxed  this  connection  and  recipro- 
city of  obligation,  had  a  direct  tendency  to  overturn  the  feud. 

One  of  the  earliest  circumstances  of  this  tendency  was,  the  general  introduc- 
tion of  the  practice  of  subinfeudation.  This,  however  salutary,  in  a  general 
view,  loosened  the  tye,  which  united  the  feudal  association,  by  preventing  the 
chain  of  dependence  and  subordination,  consequent  to  the  practice  of  subinfeu- 
dation; and  which,  it  is  evident  from  the  general  principles  of  the  feudal  law, 
and  the  history  of  other  nations,  operated  in  the  strongest  manner  to  cement 
and  perpetuate  the  feud. 

Another  circumstance  of  the  same  tendency,  was,  the  introduction  of  the 
tenure  of  escuage.  This  enabled  the  tenants  by  knights  service  to  send  persons 
to  serve  in  the  king's  armies  in  their  stead,  and  in  process  of  time  to  make  a 

pecuniary 


L.  3.  C.  4.  Sect.  300.    Of  Tenants  in  Common.     [191.  a. 


pecuniary  satisfaction  to  the  lord,  in  lieu  of  it.  This  substitution  of  money,  for 
personal  attendance,  was  diametrically  opposite  to  every  feudal  principle.  Ac- 
cordingly all  writers  have  considered  it,  as  a  degeneracy  of  the  tenure  of  knight 
service.  A  further  circumstance  of  the  tendency  we  are  speaking  of,  was,  the 
jirevalence  of  the  socage  tenure.  It  is  probable,  that  the  number  of  these  tenures 
was  not  great,  till  a  considerable  time  after  the  Norman  conquest;  and  perhaps 
the  increase  of  them  was  not  rapid,  till  sometime  after  the  introduction  of  escu- 
age.  From  a  comparative  view  of  the  different  natures  of  the  military  and  socage 
tenures,  it  is  easily  seen,  how  much  stronger  the  feudal  connection  was  under 
the  former,  than  it  was  under  the  latter.  The  tenure  in  burgage  was  a  species 
of  socage  tenure.  Under  this,  chiefly,  the  commercial  part  of  the  community 
classed  themselves.  Nothing  could  be  more  opposite  to  the  nature  of  the  feudal 
tenure,  than  the  wealth,  the  independence,  and  the  peaceful  habits  of  life,  which 
usually  attend  the  pursuits  of  commerce.  Thus,  as  the  general  tenure  of  socage 
prevailed,  the  connection  between  the  lord  and  the  tenant  proportionally  relaxed. 
But  one  of  the  most  important  circumstances,  in  the  history  of  the  decline  of 
the  feud,  is,  the  introdactiun  of  uses.  By  these  the  legal  estate  of  the  land  was 
in  the  feoffee.  In  fact,  therefore,  there  never  was  a  vacancy  in  the  tenure.  But 
the  ownership  and  beneficial  property  of  the  land  being  absolutely  vested  in  the 
cestui  que  use,  there  was  no  point  of  connection  between  him  and  the  lord.  Be- 
sides, when  a  feoffment  was  made  to  uses,  it  seldom  happened,  that  the  feoff- 
ment was  made  to  a  single  person.  The  feoffees  were  numerous,  and  when  their 
number  was  reduced  to  that  of  one  or  two  persons,  a  new  feoffment  was  made 
to  other  feoffees,  to  the  subsisting  uses.  In  the  meantime,  the  ownership  of  the 
land  was  transmitted  and  aliened,  at  the  will  of  the  cestui  (pie  use.  It  is  evident 
that,  while  the  fief  was  held  in  this  manner,  there  was  a  wide  separation  between 
the  lord  and  the  tenant.  It  must  also  be  observed,  that,  where  there  was  a  feoff- 
ment to  uses,  the  fruits  of  tenure  incident  to  purchase,  became  seldom  due,  and 
those  incident  to  descent  almost  never  accrued  to  the  lord.  Now,  where  a  per- 
son took  by  purchase,  the  lord  was  only  entitled  to  the  trifling  acknowledgment 
of  relief:  when  he  came  in  by  descent,  the  lord  was  entitled  to  the  grand  fruits 
of  military  tenure,  wardship,  and  marriage.  From  these  observations,  it  is  clear, 
how  great  a  fraud  was  practised  upon  the  lord,  by  the  introduction  of  uses.  A 
fief  thus  circumstanced,  presented  an  apparent  tenant  to  the  lord,  but  it  was 
almost  barren  of  every  fruit  and  advantage  of  tenure,  and  the  land  itself  was 
entirely  subtracted  from  the  feud.  Hence,  we  find,  that,  among  the  mischiefs 
recited  in  the  preamble  to  the  statute  of  uses,  the  loss  to  the  lord,  of  the  fruits 
of  tenure,  is  particularly  insisted  on.  It  does  not  fall  within  the  nature  of  these 
observations,  to  mention  the  steps  which  were  taken  to  extirpate  uses.  One  of 
them  was  the  statute  of  the  1  Bichard  the  2d.  cap.  9.  which  gave  an  action  to 
the  disseisee,  both  against  the  feoffee,  and  the  cestui  que  use.  It  is  observable, 
that  the  senatus  consultum  Trebonianum,  gave  the  same  right  of  action  against 
the  hssresfiilei  commissar i us.  Unquestionably  the  object  of  the  statute  of  the 
27  of  Henry  8.  was  to  effect  a  total  extirpation  of  uses. 

But  uses  were  preserved  under  the  appellation  of  Trusts: — the  consequence 
has  been,  that  more  than  half  the  landed  property  in  the  kingdom  is,  in  some 
form  or  other,  charged,  in  the  hand  of  the  legal  tenant,  with  a  trust  for  the 
benefit  of  some  other  person.  A  court  of  law,  from  its  constitution,  could  not 
take  notice  of  such  a  charge  :  in  fact,  such  charges  originally  were  almost  always 
frauds  on  tenure;  but  there  were  reasons  (perhaps  rather  specious  than  substan- 
tial) for  contending,  that,  as  between  the  legal  owner  and  the  person  entitled 
to  the  benefit  of  the  trust,  the  legal  tenant  was  under  a  moral  obligation  to  exe- 
cute the  trust.  Now,  the  only  means  of  compelling  the  legal  tenant  to  execute 
the  trust,  which  the  judicial  policy  of  the  times  afforded,  was,  by  a  resort  to 
the  chancellor,  The  common  law  allowed  him  to  compel  the  attendance  of 
any  person  by  the  writ  of  subpoena;  and  to  enforce  obedience  to  his  directions 

by 


191.  a.  ]    Of  Tenants  in  Common.  L.  3.  C.  4.  Sect.  300. 

by  sequestration  of  the  property,  and  imprisonment  of  the  party.  These  enabled 
him  to  summon  the  legal  tenant  to  his  court,  to  order  him  to  execute  the  trust, 
and,  if  he  refused,  to  compel  him  to  execute  it,  by  sequestration  and  imprison- 
ment. Too  great  praise  cannot  be  given  to  the  sound  policy  and  discretion, 
with  which  the  chancellors  successively  exercised  this  nice  and  important  juris- 
diction. If  they  had  considered  that  trusts,  charged  on  lands,  should  be 
governed  by  the  rules  of  the  civil  law,  which,  when  they  first  came  under  their 
notice,  seemed  the  natural  course,  the  discordancy  between  tenure  and  trust 
must  have  produced  infinite  confusion :  but,  by  subjecting  trusts,  as  far  as  the 
nature  of  the  case  allowed,  to  the  established  rules  of  the  feud,  they  preserved 
an  analogy  between  feuds,  and  trusts,  in  their  most  important  bearings,  as  the 
order  of  descent,  the  estates  into  which  property  may  be  modified,  entails,  and 
the  mode  of  barring  them;  at  the  same  time,  that  they  preserved  inviolate,  the 
relation  between  the  lord  and  the  tenant,  the  great  principle  of  feudalism. 
Hence,  where  one  person  held  land  in  trust  for  another,  though  the  chancellor 
would  decree  the  trustee  to  convey  to  the  beneficial  owner,  still,  the  trustee  re- 
mained tenant  to  the  lord. — In  the  same  manner,  where  land  was  conveyed  to 
a  person  and  his  heirs  on  a  particular  trust,  and  the  trust  was  performed,  the 
land,  by  the  rules  of  the  civil  law,  was  instantaneously  revested  in  the  grantor; 
but  the  chancellor  considered  it  to  continue  in  the  trustee.  Thus,  in  each  case, 
the  feudal  relationship  remained  till  the  tenant  himself,  by  a  legitimate  con- 
veyance, introduced  another  into  the  tenure. — The  same  principles,  (allowing 
for  its  difterent  nature),  were  received  into  personal  property,  when  the  legal 
ownership  of  it  was  vested  in  one  person,  charged  with  a  trust  in  favour  of  an- 
other. By  this  excellent  arrangement,  while  trusts  were  made  subservient  to 
the  general  wants  and  purposes  of  society,  an  analogy  between  them  and  legal 
estates  and  interests  in  property  was  established,  and,  so  far  as  real  property 
was  concerned,  the  gi-eat  principles  of  the  common  law  of  tenure  were  respected 
and  preserved. — Perhaps,  the  propriety  of  this  arrangement,  and  the  undevi- 
ating  wisdom  of  the  great  personages,  by  whom  it  was  adopted  and  completed, 
has  not  been  sufficiently  noticed. 

It  remains  to  observe,  that  the  immense  quantity  of  property  of  every  de- 
scription, which  in  consequence  of  these  circumstances  was  brought  under  the 
jurisdiction  of  the  chancellor,  gave  rise  to  the  great  diflfereuce  between  the  office 
of  chancellor  in  this  country,  and  the  office  of  chancellor  on  the  continent.  In 
all  countries  of  Europe,  the  chancellor  is  the  highest  dignitary  of  the  state,  the 
guardian  of  the  sovereign's  conscience,  and  generally  the  keeper  of  his  seal; 
the  visitor  of  hospitals  and  colleges  of  the  king's  foundation,  and  the  general 
superintendent  of  charitable  foundations. — Over  these,  the  chancellor  of  Eng- 
land exercises  chiefly,  in  consequence  of  the  introduction  of  trusts,  a  vast  and 
extensive  jurisdiction,  partly  as  a  court  of  common  law,  but  principally  as  a 
court  of  equity.  On  tlie  continent,  the  chancellors  have  no  such  exclusive 
court;  but  have  the  universal  superintendence  over  all  that  relates  to  the  ad- 
ministration of  justice  in  the  kingdom,  a  controlling  power  to  correct  any 
abuses,  which  find  their  way  into  courts  of  judicature,  to  form  new  regulations 
for  their  proceedings,  to  determine  questions  of  jurisdiction  between  them,  to 
settle  difi"erences  among  the  members  of  them,  to  appoint  the  higher  offices  of 
justice,  and  form  the  royal  ordinances  and  edicts,  which  in  any  wise  related  to 
the  legal  polity  of  the  kingdom,  or  the  administration  of  justice. — In  most 
countries,  the  administration  of  common  law  and  equity  is  committed  to  the 
same  courts;  in  England,  the  courts  are  separate  : — Lord  Bacon,  De  Augmentis 
Scientiarum,  I.  8.  c.  3.  app.  4G.  has  pronounced  a  decisive  opinion  in  favour 
of  their  separation. 

While  the  relation  between  the  lord  and  the  tenant  was  great,  the  separation 
of  the  beneficial  interest  from  the  legal  tenure  was  a  serious  mischief.  As  the 
relation  is  now  exceedingly  small,  it  is,  in  this  respect,  scarcely  felt.     In  the 

case 


L.  3.  C.  4.  Sect.  300.  Of  Tenants,  in  Common  [191.  a. 

case  of  Burgess  v.  Wheate,  1  Blackst.  Rep.  123.  lord  Mansfield  endeavoured 
to  establish  the  right  of  the  crown  to  the  benefit  of  a  trust,  which  failed  for 
want  of  an  heir,  by  attempting  to  fix  entrusts,  the  feudal  incident  of  an  escheat. 
In  the  discussion  of  the  question  the  analogy  appeared  unnatural,  and  the  case 
was  decided  against  the  crown.  A  better  ground  in  favour  of  the  claim  of  the 
crown,  might,  perhaps,  have  been  found,  by  resorting  to  its  acknowledged 
prerogative,  of  being  entitled  to  the  bona  vacantia,  or  every  species^  of  pro- 
perty of  which  no  owner  is  discoverable.  At  length  it  became  evident  to 
general  observation,  that,  the  principle  of  military  tenure  was  gone  ;  and  that 
its  incidents  were  more  burthensome  than  advantageous,  either  to  the  lord,  or 
the  tenant,  so  that  all  ranks  of  men  seem  to  have  desired  its  abolition.  The 
legislature  of  England  proceeded  in  it  with  the  circumspection,  which  the 
magnitude  of  the  object  required.  It  was  brought  regularly  before  parliament, 
in  the  18th  year  of  kind  James  the  first,  at  his  majesty's  recommendation.  In 
the  4th  Inst.  203,  lord  Coke  mentions  this  circumstance,  and  particularizes  the 
outlines  of  the  plan  then  in  agitation.  It  bears  a  striking  similitude  to  that, 
which  was  afterwards  adopted.  At  length  the  12  Cha.  2.  c.  24.  was  passed; 
which  enacts  "  That  the  court  of  wards  and  liveries,  and  all  wardships,  liveries, 
"  primer  seisin,  and  ousterlcmains,  values,  and  forfeitures  of  marriages,  by 
''  reason  of  any  tenure  of  the  king  or  others,  should  be  totally  taken  away ; 
"  and  that  all  fines  for  alienation,  tenures  by  homage,  knights  service,  and 
<'  escuage,  and  also  aids  for  marrying  the  daughter,  of  knighting  the  son,  and 
<'  ten-ures  of  the  king  in  capite,  should  be  likewise  taken  away ;  and  that 
''  all  sorts  of  tenures  held  of  the  king  or  others,  should  be  turned  into  common 
''socage;  save  only  tenures  in  frankalmoign,  copyholds,  and  the  honorary 
''  services  (without  the  slavish  part)  of  grand  serjeanty." 

It  remains  to  make  some  mention  of  the  writers,  of  whose  assistance,  the 
author,  in  framing  this  note,  has  principally  availed  himself.  Some  of  these, 
he  has  noticed  in  the  course  of  the  annotation  ;  and  to  sir  Henry  Spelman,  he 
must  here  repeat  his  acknowledgments,  With  respect  to  the  other  writers,  to 
whom  he  is  under  obligations  ;— at  the  head  of  these,  he  must  notice  the  feudal 
writers  of  his  own  country,  particularly,  sir  William  Blackstone,  lord  Kaims, 
sir  John  Dalrymple,  sir  Martin  Wright,  Doctor  Robertson,  and  Doctor  Gilbert 
Stuart— After  these,  he  must  acknowledge  a  general  obligation  to  three  foreign 
works,  which  in  every  part  of  the  annotation,  have  been  highly  useful  to  him, 
the  Thesaurus  Feuda/is  of  Jenichen,  in  the  three  quarto  volumes,  published  at 
Frankfort  on  the  Main,  in  1750  :  the  Ilistorica  Juris  of  Struvius,  in  one  quarto 
volume,  published  at  Jena  in  1728  ;  and  Voet's  Digrcsdo  de  Feudis,  subjoine.l 
to  his  Commentary  on  the  38th  book  of  the  Pandects.— Under  the  first  division 
of  the  annotation,  he  has  been  greatly  assisted  by  Koch's  Tableau  des  Revolu- 
tions de  I'  Europe  dans  le  Moyen  A<je,  4  vols,  octave,  Strasburgh,  and  Pari-^ 
1814  ;  the  early  parts  of  I'feffell's  Abretji  Chronolofjique  de  V  Historie,  and  dv 
Droit  Public  d  AUemagne,  2  vols,  octavo,  Paris,  1788  ;  and  in  a  particular 
manner,  by  D'Anville's  Etats  formes  en  Europe,  aprhs  la  Chute  de  VEmpir.: 
Romain,  1  vol.  quarto,  Paris,  1771.— Under  the  2d  division,  he  is  principally 
indebted  to  lord  Stair's  Institutions  of  the  law  of  Scotland,  lib.  2.  tit.  3.  and  u> 
a  dissertation  of  Lynkerus  de  Feudo  Pecuniario,  published  in  Jcnicheu's  Col- 
lection, 3d  vol.  sect.  38th.— Under  every  part  of  the  3d  division,  he  has  par- 
ticular obligations  to  the  Selecta  Feudalia  of  Thomasius,  octavo,  published  at 
Halle  in  1728.  In  his  account  of  the  German  codes,  he  has  received  great 
assistance  from  Brunquellus's  Historia  Juris  Romano- Germanici,  octavo, 
Amsterdam,  1728,  part  4  ;  and  Heinneccius's  Historia  Juris,  lib.  2.  His  account 
of  the  capitularies  is  taken  from  these  works,  and  from  Baluzius's  preface  to  his 
edition  of  tlie  capitularies.  His  account  of  the  customary  law  is  taken  from 
Fleury's  Ilistoire  du  Droit  Francois,  and  the  article,  Coutume,  sent  by  Mons. 
Hcnrion,  to  the  French  Encyclopedia.  Mr.  Gibbon,  (3d  vol.  page  588. 
Vol.  II.— 8  "o^e 


191.  a.]    Of  Tenants  in  Common    L.  3.  C.  4.  Sect.  301. 


Sect.  301. 


A  LSO  if  a  man  let  lands  to  two  men  for  terme  of  their  lives,  ^  the 

one  grants  all  his  estate  of  that  lohich  belong eth  to  him  to  another, 

then  the  other  tenant  for  terme  of  life,  and  he  to  whom  the  grant  is  made 

(et  t  celuj  a  que  le  graunt  est  fait,)  are  tenants  in  common  during  the 

time  that  both  the  lessees  be  alive. 

And  memorandum,  that  in  all  other  such  like  cases  (que  en  touts  % 
auters  tiels  cases,)  although  it  be  not  here  expressly  moved  or  specified,  if 
they  be  in  like  reason,  they  are  in  the  like  law  (sont  en  ||  semblable  ley.) 

AND 
"I"  Mesme  added  in  L.  and  M.  hut  |  les  added  in  L.  and  M.  hutnot 

not  in  Roh.  in  Roh. 

II  semble  L.  M.  and  Roh. 


note  1.)  has,  with   his  usual  energy,  thus   mentioned  and  characterized  four 
writers,  the  three   last  of  whom,  the  editor  has  frequently  had   occasion  to 
consult,  under  the  4th  division;  "  In  the   space  of  thirty  years,  (1738 — 1765) 
"  this  interesting    subject,  (the  history  of  the  invasion   of  Gaul,)    has    been 
"  agitated  by  the  free  spirit  of  the  count  de  Boulainvillers  (^Memoire  Jiiston'que 
'' sur  V  Utat  de  la  France,  particularly   torn.  1.   page  15.  40.);  the   learned 
"  ingenuity  of  I'abbe  Dubos  {Histoire  critique  de  V Etahlissement  de  la  Monar- 
"  chie  Francaise  dans  les  Gaulcs,  2  vols.  4to.)  ;  the  comprehensive  genius  of  the 
"  president  de  Montesquieu  (^Ei^prit  des  Loix,  particularly  1.  28.  30,  31);  and 
"  the    good  sense    and    diligence  of  the    abbe  de  Mably  (^Observations  sur 
"  V Histoire  de  France,  2  vols.  12mo.)."     The  last  work,  being  considered  as 
unfavourable  to  monarchy,  was  opposed,    by  a    work    entitled    Principcs   de 
Morale,   de   Politique   ct   de  Droit   Public,  puises  dans  V   Histoire    de  noire 
Monarchic,  ou  Discours  sur  V Histoire  de  France,  dedies  au  Roi,par  M.  Moreau, 
Historiogrophe  de  France.  A  Paris,  de  V  imprhnerie  royalc,  1777,  24  vols.  8vo. — 
Under  this  head,  he  has  also  received  great  assistance  on  the  subject  of  the 
history  of  France,  from  the  president  Henault,  and  from  the  Theorie  des  Ma- 
tier  esFeod  ales  et  Censuelles, liar  Munsr.  Herv^,  5  vols.  8vo.      Paris,  1785  ; — For 
what  he  has  said,  respecting  the  feudal  history  of  Germany,  he  is  chiefly  in- 
debted to  Mr.  Dornford's  excellent  translation  of  Professor  Putter's  Historical 
Development  of  the  present  Constitution  of  the  Germanic  j5'?7?2HVe,  and  Struvius's 
Elementa  Juris  FeudaUs,  Jena,  8vo.  1745. — In  his  account  of  the  substitutions 
of  the  civil  law,  he  found,  what  is  said  on  these  subjects,  in  the  Pra-Iectiones 
of  Huberus,  3  vols.  8vo.  Trajecti  ad  Rhcnum,  particularly  useful. — The  little 
he  has  said  on  the  Spanish  fiefs,  he  has  taken  from  Molina  de  Hispaniorum 
Primogenils,  fol.  Colonial,  1601 :  and  Zoesius's  Juris  Fcudalis  analytica  Expo- 
sitio,  8vo.  Lovanii,  1663.     He  might  perhaps  have  said  something  more  satis- 
factory on  this    head,  had  he  been  able  to   procure    Girardus   Ernestus  de 
Frankinau  s  Sacras  Themidis  Hispania'  Arcana,  Hanover,  1703-4.     In  the  pre- 
sent edition  of  this  Work,  the  writer  has  availed  himself  of  a  work  of  great 
merit,  De  V  Origine  et  des  Progres  dela  Legislation  Franqaise,  ou,  Histoire  du 
Droitpuhlic  etprive  dela F ranee, depuis  la  Foundation  dela  Monarchic, jusques 
et  compris  la  Revolution  ;  par  M.  Bernardi,  1  vol.  8vo.  1816.  In  a  few  instances, 
he  has  taken,  what  he  hopes  will  be  thought,  a  pardonable  liberty,  of  inserting, 
in  the  present  annotation,  some  passages,  from  this  notes  to  the  subsequent 
part  of  the  work.     These,  however,  will  be  found  preserved  in  their  original 
situation. — [Note  77] 


L.  3.  C.  4.  Sect.  301.  Of  Tenants  in  Common.     [191.  a. 


A 


ND  so  it  is  if  lands  be  letten  to  two  for  terme  of  their  lives,  (2  Roll.  Abr. 
-  -  et  eornm  altcrius  diutius  viventi{l'),  and  one  of  them  grant-  89,  90.  1  Rep. 
eth  his  part  to  a  stranger,  whereby  the  joynture  is  severed,  and  ^'*-    ■> 
dyeth,  here  shall  be  no  survivour,  but  the  lessor  shall  enter  into  30  Ass.  18. 
the  moity,  and  the  survivour  shall  have  no  advantage  of  these  (4  Rep.  72.  b. 
words,  et  eorum  alter ius  diutim  vlventi,  for  two  causes.     First,  2  Cro.  378.  417. 
for  that  the  joynture  is  severed.    Secondly,  for  that  those  words 
are  no  more  than  the  Common  Law  would  have  implyed  without  (Post.  205,  a. 
them,  and  exjjressio   eorum  quae   tacitt  insunt   nihil  operatur.  Hob.  170.  208.) 

Hereby 


(1)  Here  lord  Coke  speaks  only  of  a  jointenancy  for  life;  in  which  case,  the 
words  and  the  survivor  of  them  are  merely  words  of  surplusage;  as,  without 
them,  the  lands,  upon  the  death  of  one  jointenant,  go  to  the  survivor.    But,  in 
the  creation  of  a  joiuteuancy  in  fee,  particular  care  must  be  taken  not  to  insert 
these  words.     For  the  grant  of  an  estate  to  two  and  the  survivor  of  them,  and 
the  heirs  of  the  survivor,  does  not  make  them  jointenants  in  fee;   but  gives 
them  an  estate  of  freehold,  during  their  joint  lives,  with  a  contingent  remainder 
in  fee  to  the  survivor. — Whether,  during  their  joint  lives,  the  fee  continues  in 
the  grantor,  or  is  in   abeyance;   and  whether  the  grantees  can  convey  their 
estate;  and  what  is  the  proper  mode  of  conveyance  to  be  used  for  this  purpose; 
are  points  which  have   been   much   agitated,  and  which,  perhaps,  are  not  yet 
quite  settled.     They  were  all  mentioned  in  the  case  of  Vick  v.  Edwards,  3  P. 
Will:  372.     In  that  case  lands  were  devised  to  B.  and  C.  and  the  survivor  of 
them,  and  the  heirs  of  such  survivor,  in  trust  to  sell;  lord  chancellor  Talbot 
held,  that  the  fee  was  in  abeyance;  that  the  trustees,  joining  in  a  fine  of  the 
premises,  might  make  a  title  to  a  purchaser,  by  way  of  estoppel;  and,  that  the 
heirs  joining' might  be  of  use,  as  it  would  supply  the  want  of  proving  the  will; 
but  that,  in  every  other  respect,  it  would  be  void.     Five  years  before  this  case 
was  heard,  the  duchess  of  IMarlborough,  having  contracted  to  purchase  an  estate 
from  the  devisees  in   trust  of  sir  John  Wittewronge's  will,  where  the  devise 
was  worded  in  a  manner  similar   to   that  upon  which  the  case   of  Vick  v.  Ed- 
wards arose,  application  was  made  to  parliament  for  an  act  to  enable  the  trus- 
tees to  convey  the  estate  to  her.     In  the  preamble  of  the  act  it  is  mentioned, 
''That  the  devise  of  the  premises  by  the  will  of  sir  John  Wittewronge  was  not 
"eflfectual  in  the  law  to  vest  the   absolute  fee  simple  thereof  in  the  trustees 
"therein  named,  there  being,  by  the  words  of  the  will,  no  fee  vested,  but  upon 
''a  contingency  of  survivorship,  and  which  could  not  vest  or  take  effect  till 
"after  the  death  of  two  of  the  trustees."     But  notwithstanding  the  case  of 
Vick  and  Edwards,  it  seems  now  to  be  the  prevailing  opinion,  that,  in  these 
cases,  the  fee  is  not  in  abeyance,  but  remains,  pending  and  subject  to  the  con- 
tingency, in  the  grantor  and  his  heirs,  particularly,  if  the  estate  of  the  trustees 
is  created  by  a  deed  deriving  its  effect  from  the  statute  of  uses,  and  that  if  it 
be  created  by  will,  it  descends,  at  the  decease  of  the  testator,  upon  his  heir  at 
law. — In  support  of  which  it  is  said,  that  the  whole  fee  must  be_ supposed  to 
be  in  the  grantor  at  the  time  of  the  conveyance;  that  so  much  of  it  as  he  does 
not  part  with  continues  in  him;  that,  in  this  case,  the  inheritance  is  undisposed 
of,  till,  by  the  death  of  one  of  the  parties,  the  remainder  vests,  and  is  executed 
in  the  survivor;  that,  therefore,  the  inheritance  continues  in  the  grantor,  as 
part  of  his  old  reversion;  that  the  law  never  supposes  the  fee  to  be  in  abeyance, 
unless  where  it  is  necessary  to  recur  to  that  construction,  for  preserving  some 
estate  or  right;  and  that,  in  the  present  case,  no  such  necessity  exists.     The 
cases  of  Carter  and  Barnardiston,  1  P.  W.  505.     Purefoy  v.  Rogers,  2  Saund. 
380.  and  many  other  cases  of  authority,  strongly  favour  thi.s  latter  opinion.-— 
The  same  reasoning  goes  to  prove,  that,  where  there  is  a  devise  to  the  effect  in 
question,  the  reversion  in  fee,  during  the  suspense  of  the  contingency,  descends 
on  the  heir  at  law. — As  to  the  question,  Whether  the  contingent  remainder,  in 

this 


191.  a.]    Of  Tenants  in  Common.  L.  3.  C.  4.  Sect.  301. 

Hereby  it  appeareth  that  in  case  of  leases  for  life  it  is  more  bene- 
ficiall  for  the  lessor  to  have  the  jojnture  severed  than  to  have  it 
continue. 

Vid.  Sect.  1.  ^''  If  t^cy  ^^  '^  ^*''^^  reason,  they  are  in  the  lihe  7aw.^'     Here 

Littleton  citeth  one  of  the  Maximes  of  the  Common  Law.  That 
wheresoever  there  is  the  like  reason,  there  is  the  like  law.  Ubi 
eadem  ratio,  ihi  idem  jus ;  or  vbi  eadem  ratio,  ihi  idem  jus  esse 
debet;  for  ratio  est  anima  Icgis.  And  therefore  ratio  potest  alle- 
gari  dejiciente  lege.  But  it  must  be  ratio  vera  et  legalis  et  non 
apparens.     And  here  it  appeareth  that  argumentum  d  simili  is 

good 


this  case,  can  be  conveyed?  it  may  be  observed,  that,  supposing  the  reversion 
remains  in  the  donor,  if  he  and  the  donees  join  together  in  a  common  convey- 
ance, by  lease  and  release,  or  bargain  and  sale,  the  estate  for  life  of  the  donees 
will  merge  in  the  reversion,  the  contingent  remainder  be  destroyed,  and  the 
fee  efiectually  conveyed  to  the  purchaser. — It  will  be  the  same,  in  the  case  of 
a  devise  to  this  efFect,  if  the  heir  at  law  and  the  devisees  in  trust  join  in  the 
conveyance. — But,  supposing  the  fee  to  be  in  abeyance; — or,  admitting  it  to 
remain  in  the  donor;  or,  in  case  of  a  will,  to  descend  on  the  heir,  and  supposing 
him  not  to  join; — lord  Talbot,  by  what  he  is  reported  to  have  said  in  the  case 
of  Vick  V.  Edwards,  seems  to  have  thought,  that  the  trustees  joining  in  a  fine 
might  still  pass  a  good  title  to  a  purchaser.  But  this  doctrine  is  open  to  objec- 
tion. See  Mr.  Fearne's  Essay  on  Contingent  Remainders,  Cth  edit.  357.  Per- 
haps, the  liberality  of  succeeding  times  may  think  a  common  conveyance,  by 
lease  and  release,  or  bargain  and  sale,  sufficient  in  these  cases  to  pass  the  fee, 
without  either  a  fine  or  recovery. 

In  the  case  of  Goodtitle  v.  Layman,  in  K.  B.  Trinity  Term,  12  Geo.  3,  there 
was  a  devise  to  three  persons  as  jointenants  and  the  survivors  and  survivor  of 
them,  and  the  heirs  and  assigns  of  such  survivor  for  ever,  the  court  of  king's 
bench  held  it  to  be  a  jointenancy  in  fee. — See  Mr.  Fearne's  Cont.  Rem.  6th 
edit.  358. — In  the  matter  of  Harrison  an  infant,  3  Ans.  836,  a  mortgagee  de- 
vised all  his  property  to  three  trustees,  and  the  survivor  and  survivors  of  them, 
and  the  heirs,  executors,  and  administrators  of  such  survivor,  upon  certain 
trusts,  the  court  was  of  opinion,  that  the  fee  descended  on  the  heir,  until,  by 
the  death  of  two  of  the  trustees,  it  should  vest  in  the  survivor.  But  it  is  ob- 
served by  the  reporter,  that  there  was  no  trust  to  sell,  nor  any  trust,  which, 
by  necessary  implication,  carried  a  fee  to  the  trustees. 

A  material  objection  to  taking  the  conveyance  by  fine  from  the  trustees,  lies 
in  those  cases,  where  the  heir  at  law  is  not  a  party. — For,  if  the  trustees  are 
supposed  to  be  jointenants  for  life,  with  a  contingent  remainder  in  fee  to  the 
survivor,  their  fine  may  be  supposed  to  be  a  forfeiture  of  their  own  estate,  to 
be  a  destruction  of  the  contingent  remainder  to  the  survivor,  and  to  give  the 
heir  an  immediate  right  of  entry. — To  prevent  this,  it  has  been  advised,  that 
the  trustee  should  demise  the  estate  to  the  purchaser,  or  to  a  trustee  for  him, 
for  a  long  term  of  years;  and  that  each  trustee  should  covenant,  that,  if  he 
should  be  the  survivor,  he  will  convey  the  fee; — and  to  have  that  agreement 
established,  by  a  decree  of  the  court  of  chancery. — If  there  are  outstanding 
terms,  they  should  be  assigned  to  a  trustee  for  the  purchaser. 

It  may  be  added,  that,  whatever  doubts  were  formerly  entertained,  it  now 
appears  to  be  the  settled  opinion  of  the  profession,  that  a  devise  to  two  and 
the  survivor  of  them,  and  the  heirs  and  assigns  of  the  survivor,  enables  the 
trustees  to  vest  the  fee  in  the  purchaser;  and  that  titles,  under  such  a  devise, 
are  accepted,  with  a  conveyance  from  the  trustees,  and  without  the  concur- 
rence of  the  heir. — [Note  78.] 


L.  3.  C.  4.  S.  302.  Of  Tenants  in  Common.  [191 .  a.  191 .  b. 

good  in  law.  Sed  similitudo  legalis  est  casuum  diversorum  inter 
se  coUatorum  simills  ratio,  quod  in  uno  similium  valet,  valehit  in 
altera  dissimilium  dissimilis  est  ratio. 


[^^1-]  fi^Sect.  302. 

A  LSO  if  there  he  two  joyntenants  in  fee  (Item*  si  deux  joyntenants 
en  fee  sont),  and  the  one  letteth  that  to  him  belongeth  to  another  for 
terme  of  his  life,  the  tenant  for  term  of  life  during  his  life,  and  the  other 
jointenant  which  did  not  let,  are  tenants  in  common.  And  upon  this  case 
a  question  may  arise  ;  as  in  such  case  (f  si  come  en  tiel  case)  admit  that 
the  lessor  hath  issue  and  die,  living  the  other  joy  ntenant  his  companion,  and 
living  the  tenant  for  life,  the  question  may  he  this,  WJiether  the  reversion 
of  the  moiety  J  which  the  lessor  hath  shall  descend  to  the  issue  of  the  lessor, 
or  that  the  other  jointenant  shall  have  this  reversion  hy  the  survivor  (ou 
que  Tauter  joyntenant  avera  ||   eel  reversion  per  le  survivor)?     Some 
have  said  in  this  case,  that  the  other  jointenant  shall  have  this  reversion 
hy  the  survivor  ;  and  their  reason  is  this,  scil.   That  when  the  jointenantfi 
wer^  jointly  seised  in  fee  simple  (que  quant  les  joyntenants  fueront  joynt- 
ment  seises  §  en  fee  simple,)  c^c.  although  that  the  one  of  them  make  an 
estate  of  that  to  him  belongeth  for  term  of  ^  his  life,  and  although  that 
he  hath  severed  the  freehold  of  this  which  to  him  belongs  hy  the  lease,  yet 
he  hath  not  severed  the  fee  simple,  hut  the  fee  simple  remaines  to  them 
jointly  as  it  was  before.     And  so  it  seemeth  to  them,  that  the  other  joyn- 
tenant which  surviveth  shall  have  the  reversion  by  the  survivor,  ^c.  And 
others  have  said  the  contrary,  and  this  is  their  reason,  scilicet,  That  when 
one  of  the  join-tenants  leaseth  that  to  him  belongeth,  to  another  for  terme 
of  his  life  hy  such  lease  the  freehold  is  severed  from  the  joynture.    And 
hy  the  same  reason  the  reversion  lohich  is  depending  upon  the  same  free- 
hold is  severed  from  the  joynture.  Also  if  the  lessor  had  reserved  to  him 
an  annual  rent  upon  the  lease,  the  lessor  onely  should  have  had  the  rent, 
^■c.  the  which  is  a  proof  e,  that  the  reversion  is  onely  in  him,  and  that  the 
other  hath  nothing  in  the  reversion,  c^c.  Also  if  the  tenant  for  terme  of  life 
were  impleaded,  ^  maketh  default  after  default,  the  lessor  shall  he  only 
received  for  this,  to  defend  his  right,  and  his  companion  in  this  case  in  no 
manner  shall  be  received,  the  which  proveth  the  reversion  of  the  moitie  to 
he  only  in  the  lessor  (le  quel  prove  **  le  reversion  del  moity  d'estre  tant- 
solement  en  le  lessor) :  a^id  so  by  consequent,  if  the  lessour  dieth  living 
tTie  lessee  for  terme  of  life,  the  reversion  shall  descend  to  the  heir  of  the 
lessour,  and  shall  not  come  to  the  other  jointenant  hy  the  survivor.  Idee 
quaere.     But  in  this  case  if  that  joint  tenant  which  hath  the  freehold  hath 
issue,  ^  dies  living  the  lessor  and  the  lessee,  then  it  seemeth  that  the  same 
issue  shall  have  this  moity  in  demesne,  and  in  fee  hy  descent,  for  that  a 

freehold 

*  si   deux   not  in  Roh.  but  in  L.         \\  eel  reversion,  ceo  in  L.  and  M 

and  M.  and  Roh. 

f  si  not  in  L.  and  M.  or  Roh.  §  en — de  in  L.  and,  M.  and  Roll. 

\  &c.    added    in   L.    and    M.    and         ^  his  not  in  L.  and  M.  or  lloh. 
Roh.  **  que  added  in  L.  and  M.  and  Roh. 


191.  b.  192.  a.]  Of  Tenants  in  Common.  L.  3.C.  4.  S.  302. 

freehold  cannot  hy  nature  of  joynture  he  annexed  to  a  reversion  (pur  ceo 
que  *un  franktenement  ne  poet  per  nature  de  jojnture  estre  annexe  a 
un  reversion),  Sj-c.  And  it  is  certaine,  that  he  which  leased  was  seised  of 
the  moitie  in  his  demesne  as  of  fee,  and  none  shall  have  any  joynture  in 
his  freehold,  therefore  this  shall  descend  to  his  issue,  ^c.  Sed  quaere. 

"  TF  there  he  tico  joyntenants  in  fee,  &c." 
This  needetli  no  explanation. 

"  And  npon  this  case  a  question  may  arise,  &c." 
Vid.  33  H.  6.  Here  Littleton  maketh  a  question,  and  sheweth  the  reasons  on 

**^-  both  sides,  and  concludes  with  a  Quaere.  "When  Littleton  maketh 

a  question,  and  sheweth  the  reason  on  both  sides,  the  latter  is  ever 
[a]  Vide  Sect,  his  own  [a],  and  the  better.  But  time  hath  made  this  question 
340.  375.  439.      -without  question  ;  for  now  all  agree  that  the  joynture  is  severed 

A  A  (\     Af\0     Afi^  *  ^     •* 

464  4S2'  483*      ^^^  ^^^  time,  according  to  the  latter  opinion  here  set  down  in 
648.  72o! 729.       Littleton,  whose  reasons  are  unanswerable;  for  many  times  the 
Vid.  Sect.  170.     change  of  the  freehold  makes  an  alteration,  or  change  of  the  re- 
version.    As  if  tenant  in  taile,  or  the  husband  seised  in  the  right 
of  his  wife,  or  tenant  for  life,  make  a  lease  for  life  of  the  lessee, 
in  everie  of  these  cases  the  lessor  doth  gaine  a  new  reversion  by 
Vid.  Sect.  8.        wrong,  as  shall  be  said  more  at  large  in  the  chapter  of  Discon- 
^A^f^is     1        tinuance;  and  if  the  elder  brother  grant  the  reversion  (expect- 
^      •     •   •''        ^qj.  upon  a  freehold)  for  life,  it  shall  cause  j)ossessio  fratris,  as 
hath  been  sayd. 

^'By  the  same  reason  the  reversion  which  is  depending  upon  the 
same  freehold  is  severed  from  the  joynture,  (Sec." 

7  H.  7.  9.  If  two  joyntenants  in  fee  be,  and  they  both  joyn  in  a  lease  to 

an  abbot  and  a  secular  man  for  term  of  their  lives,  here  the  rever- 

(Ant.  189.  b.)      sion  that  is  dependent  upon  severall  freeholds  is  severed.  And  so 
it  is  if  they  joine  in  a  lease  to  two  secular  men  to  have 
and  to  hold  the  one  moiety  to  the  B@°"  one  for  life,  and  ri93."| 
the  other  moiety  to  the  other  for  life,  for  both  these  |_     a.     J 
cases  are  warranted  by  the  authority  of  Littleton. 

(Post.  Sect.  319.       If  two  joyntenants  be  of  a  lease  for  twenty-one  years,  and  the 

^^^"  ^"^  one  of  them  letteth  his  part  for  certaine  yeares,  part  of  the  terme, 

the  joynture  is  severed,  and  survivor  holdeth  not  place,  for  a 
terme  for  a  small  number  of  yeares  is  as  high  an  interest  as  for 
many  more  yeares;  and  so  was  it  resolved  Hil.  18  El.  Reginoe, 

fHil.  18  Eliz.     in  Communi  Bancof,  which  I  myselfe  heard. 

If  two  coparceners  be  in  fee,  and  the  one  make  a  lease  for  life, 
this  is  no  severance  of  the  coparcenary,  for  notwithstanding  the 
lord  shall  make  one  avowrie  upon  them  both. 

(Ant.  167,  a.)  But  if  two  joyntenants  be,  and  one  maketh  a  lease  for  life, 

this  is  a  severance  of  the  joynture,  as  Littleton  here  takcth  it, 
and  several  avowries  shall  be  made  upon  them  (1). 

''Also 

*  xm  not  in  L.  and  M.  or  Roh. 

(1)  Upon  the  death  of  either  of  the  lessees,  one  moiety  of  the  estate  goes 
to  the  surviving  lessee  or  his  assignee,  and  the  reversioner  may  enter  upon  the 
other  moiety.  See  Dy.  67.  sir  W.  Jones  55.  2  P.  Will.  740.  But  this  is  to 
be  understood  where  the  jointenants  are  for  life;  for  if  the  jointenants  are  in 
fee,  and  the  joynture  is  severed,  the  right  of  survivorship  is  wholly  taken 

away. 


L.  3.  C.  4.  S.  302.  Of  Tenants  in  Common.  [192.  a.  192.  b. 

"  Aho  if  the  lessor  had  reserved  an  annual  rent,  the  lessor  only  5  E.  4.  4.  2. 
should  have  had  the  rent,  &c."     But  if  two  joyntenants  make  a  f^^'^^l^'  ^" 
lease  for  life,  reserving  a  rent  to  one  of  them,  the  rent  shall  enure  j^  j^j"  3^  ' 
to  them  hoth,  because  the  reversion  remains  in  jointure,  unless  Br.  282. 
the  reservation  be  by  deed  indented,  and  then  he  onely  to  whom  ip'^\'^I{^'\  . 
it  is  reserved  shall  have  it.     But  if  they  make  a  lease  by  deed 
indented,  reserving  or  saving  the  reversion  to  one  of  them,  that 
is  void,  because  they  had  the  reversion  before,  bnt  the  rent  is 
newly  created. 

And  so  it  is  if  such  a  lessee  for  life  should  surrender  to  one  of  5  E.  4.  4. 
them,  it  shall  enure  to  them  both,  for  that  they  have  a  joynt  re-  p^jg^®|J4^k ) 
version.     But  if  the  lessee  grant  his  estate  to  one  of  them,  no 
part  of  it  shall  enure  to  his  companion,  because  for 

[193.1  the   moiety    belonging    to    his  companion,    it  is  in  (2  Cro.  611. 
b.    J  es.se  B®"  in  him  to  whom  the  grant  is  made,  the  re-  Perk.  31.) 
version  to  the  other  in  fee. 
If  two  joyntenants  make  a  lease  for  life,  the  remainder  to  33  h.  6.  24.  b. 
his  companion  in  fee,  this  is  a  good  remainder  of  his  moietie  to  2  R.  3.  tit.  Ex- 

his  comninion  tinguishment,  3. 

nis  companion.  ^^  j^^^  ^^^~^ 

"  The  lessor  shall  be  only  received  for  this,  &c." 

"  Received."  Receit,  Receptio,  is  in  many  cases  where  a  person,  (Post.  352.  b.) 
partie  to  a  writ,  or  an  estranger  thereunto,  to  whom  a  reversion 
or  remainder  appertaineth,  shall  in  default  of  another  person  be 
received  to  defend  his  or  her  freehold  or  inheritance,  the  law 
saith,  Admittatur,  <i'c.  And  this  admission  or  receipt  is  given 
by  sundry  statutes  [/]  (and  this  is  that  which  the  civilians  call,  [/]  w.  2.  cap.  3. 
Admissio  terticB  pcrsonce  pro  interesse).  Et  in  casihus  prcedictis  20  E.  1.  Statute 
duce  co7icurrunt  actiones :  una  inter  pretcntem  &  tenentem,  &  alia 
inter  tenentem  jus  suxim  ostendentcm  &  petentem.  cap.^ie, 

"  For  that  a  freehold  cannot  hy  nature  of  joynture  he  annexed 
to  a  reversion."  And  this  is  the  principall  reason,  and  of  this 
sufficient  hath  been  said  in  the  chapter  of  Joyntenants,  Sect. 
291. 

"  &c."  This  &c.  in  the  end  of  this  section,  implieth  any  other 
heir  lineal  or  collaterall. 

Sect. 


de  defensione 
Juris.     13  R.  2. 


away,  and  their  shares  go  to  their  respective  heirs.  So,  if  there  be  joyntenants 
of  a  term  of  years,  and  the  joiutenaufy  is  severed,  their  shares  go  to  their 
respective  personal  representatives.  See  1  Salk.  158.  It  should  also  be  ob- 
served that  the  case  put  by  Littleton  supposes  the  jointenant  to  let  his  estate 
for  his  own  life  only  :  for  if  he  let  it  for  a  longer  term  than  for  his  own  life, 
or  if  he  let  it  for  the  life  of  any  other  person,  it  is  a  forfeiture.  See  4th  Leon. 
236.— [Note  79.] 


193.  a.]       Of  Tenants  in  Common.    L.  3.  C.  4.  S.  303-4. 


Jl^  Sect.  303. 


J^UT  if  it  he  so  that  the  law  in  this  case  be  such,  that  if  the  lessor  die 
living  the  lessee,  and  livi7ig  the  other  joyntenatit  which  hath  the  free- 


hold of  the  other  moity,  that  the  reversion  shall  descend  to  the  issue  of  the 
lessor,  then  is  the  joynture  and  title  which  any  of  them,  may  have  by  the 
survivor  and  the  right  of  the  joynture  taken  away,  and  altogether  defeated 
for  ever.  In  the  same  manner  it  is,  if  that  joyntenant  tvhich  hath  the 
freehold  dye  living  the  lessor  and  the  lessee,  if  the  law  be  so  as  his 
freehold  aiid  fee  which  he  hath  in  the  moity  shall  desceiid  to  his  issue j 
then  the  joynture  shall  he  defeated  for  ever. 

"  rplIEN  is  the  joynture   and  title,  &c.  and  the  right  of  the 

joynture  taken  away,  &c. 

And  the  reason  of  this  is,  for  if  the  joynture  be  severed  at  the 

time  of  the  death  of  him  that  first  deceased,  the  benefit  of  the 

[*]  Vide  Sect,      survivor  is  utterly  destroyed  for  ever,  as  hath  been  said  [*]  afore 

^p^      914.  ^'^  ^^^   Chapter  of  Joyntenants.     But  in  the  case  aforesaid,  if 

^       ■       ■   ■       tenant  for  life  dyeth  in  the  life  of  both  the  joyntenants,  they  arc 

joyntenants  again  as  they  were  before. 

If  two  joyntenants  be  in  fee,  and  the  one  letteth  his  part  to 
another  for  the  life  of  the  lessor,  and  the  lessor  dieth,  some  say 
that  his  part  shall  survive  to  his  companion,  for  by  his  death  the 
lease  was  determined.  And  otbers  hold  the  contrary ;  and  their 
reason  is,  first,  for  that  at  the  time  of  his  death  the  joynture  was 
severed,  for  so  long  as  he  lived  the  lease  continued.  And  se- 
condly, that  notwithstanding  the  act  of  any  one  of  the  joyn- 
tenants, there  must  be  equall  benefit  of  survivor  as  to  the  free- 
hold. But  here  if  the  other  joyntenant  had  first  died,  there  had 
been  no  benefit  of  survivor  to  the  lessor  without  question. 


Sect.  304. 

A  ND,  if  three  joyntenants  be,  and  the  one  release  by  his  deed  to  one 
of  his  companions  all  the  right  which  he  hath  in  the  land  (1),  then 
hath  he  to  whom  the  release  is  made,  the  third  part  of  the  lands  by  force  of 
the  said  release,  and  he  and  his  compa^iion  shall  hold  the  other  two  parts  in 
joynture  (et  il  son  companion  teigneront  les  auters  deux  parts  *  en 
joynture).  And  as  to  the  third  part,  which  he  hath  by  force  of  the  release, 
he  holdeth  that  third  part  with  himself e  and  his  companion  in  common. 

*  en  jointure — ^jointment,  r?i  L.  and  31.  and  Roh. 


(1)  In  this  case  the  release  passes  a  fee  without  the  word  heirs,  because  it 
refers  to  the  whole  fee  which  they  jointly  took  and  are  possessed  of  by  force  of 
the  first  conveyance.  Tenants  in  common  cannot  release  to  each  other;  for 
a  release  supposes  the  party  to  have  the  thing  in  demand;  but  tenants  in  com- 
mon have  several  distinct  freeholds,  which  they  cannot  transfer  otherwise 
than  as  persons  solely  seized. — [Note  80.] 


L.  3.C.4.  S.  305.  Of  Tenants  in  Common.  [193,  a.  193. 1). 

UPON  this  case  these  two  things  are  to  be  observed.     First,  (Post.  318.  a. 

that  in  this  case  this  release  doth  enure  by  way  of  mitter  ^  Rep.  78.  b. 

V estate,  and  not  [*]  by  way  of  extinguishment,  for  then  the  release  r«"j  "g  ^liz"^ 

should  enure  to  his  companion  also,  as  he  is  in  the  per  by  him  Dyer,  263. 

that  raaketh  the  release,  [a]  But  if  he  had  released  to  i^  n.  6. 17. 

[193.1   the  other  two,  then  it  had  wrought  no  degree  (A)  Jg@"  ft^E.'^s^'tit;  '^^' 

|_     a.     J  but  in  supposition  of  law,  for  many  purposes  they  to  oarr. 

whom  the  release  is  made  (as  ha'„h  been  said)  shall  be  35  E.  3.  Release, 

supposed  in  from  the  first  feoffor,  as  they  shall  dcraignc  the  first  j']"£^|  ' 

warrantie  for  the  whole.     [6]  The  second  thing  to  be  observed  Briefs,  28. 

is,  that  he  to  whom  the  release  is  made  hath  a  fee  simple  without  19  H.  6. 17. 
this  word  (heires),  as  hath  been  touched  in  the  fii-st  chapter  of  ^3  H.  6.  5. 

the  first  booke,  for  that  he  to  whom  the  release  is,  is  seised  per  37  i{  g] 

my  et  per  tout,  of  the  fee  and  inheritance,  as  hath  been  said  in  the  Alienation,  33. 

Chapter  of  Joyntenants.     And  note,  the  like  law  is  between  co-  ^^^^  4^  8^ 

parceners;  and  further,  if  there  be  two  coparceners,  and  the  one  ^p^gi  ogj  ^  ) 

hath  issue  twenty  daughters  and  dieth,  the  other  may  release  [h]  9  Eliz. 

to  any  one  of  the  daughters,  her  whole  part,  albeit  she  to  whom  L|yer,  263. 

the  release  is,  hath  not  an  equall  part :  but  for  the  privitie  and  ,^^{^^  9_  ^'^ 
the  individed  estate,  the  release  is  good. 

But  if  two  joyntenants  be  of  twenty  acres,  and  the  one  maketh 
a  feoffment  of  his  part  in  eighteeue  acres,  the  other  cannot  re- 
lease his  entire  part,  but  only  two  acres,  for  that  the  joynture  is 
severed  for  the  residue. 


Sect.  305. 


J  ND  it  is  to  he  observed,  that  sometimes  a  deed  of  release  shall  take 
effect  (que  ascun  foits  f  un  releas  prendra  effect),  and  enure  to  put 
the  estate  of  him  ivhich  makes  the  release  to  him  to  tvhom  the  release  is 
made,  as  in  the  case  aforesaid,  and  also,  as  if  a  joi/nt  estate  be  made  to 
the  husband  and  wife,  and  of  (B)  a  third  person,  and  the  third  person 
release  all  his  right  which  he  hath  to  the  husband  (sicome  joynt  estate 
soit  fait  a  le  baron  et  sa  feme,  et  la  tierce  person|,  et  la  tierce  person 
relessa  tout  son  droit  que  il  ad  ||  a  le  baron),  then  hath  the  husband  the 
moitie  which  the  third  had,  and  the  wife  hath  nothing  of  this.  And  if 
in  such  case  the  third  release  §  to  the  wife  not  naming  the  husband  in  the 
release,  then  hath  the  wife  the  moitie  ivhich  the  third  had,  Jx'.  and  the 
husband  hath  nothing  of  this  but  in  right  of  his  wife,  because  that  in  this 
case  the  release  shall  enure  to  make  an  estate  to  tvhom  the  release  is  made, 
of  all  that  ivhich  belong eth  to  him  which  maketh  the  release,  'j-c. 

THIS 

(A)  There  is  a  semicolon  after  the  word  "  degree"  in  the  twelfth  edition,  as  the  sense  of 
the  passage  seems  to  require.  In  the  name  edition  there  is  a  comma  after  the  words  "  for 
many  purposes"  as,  it  ajypcars,  there  should  be. 

(B)   "of"  seems  to  he  here  inserted  for  to.     See  Mr.  Ritso's  Intr.  p.  111. 

f  un  fait  et,  added  in  L.  and  M.  \\  &c.    added    in    L.    and   M.    and 

and  Roh.  Roh. 

X  que  added  m  L.  and  M.  §  iCr.  added  in  L.  and  M.  and  Roh. 


193.  b.  194.  a.]  Of  Tenants  in  Common.  L.  3.  C.  4.  S.  306. 

THIS  is  evident   upon   that  whicli    hath  been    said   before. 
^_j [c]  And  it  is  to  be  understood,  that  a  release  may  enure 

Bendloes,  fgyj.  manner  of  wayes.   First,  by  way  of  mitter  Vestate,  as  here 

Dier'^263  i^  appearcth.     Secondly,  by  way  of  mitter  le  droit.     Thirdly,  by 

(2  Roll.  Abr.       way  of  extinguishment.     Fourthly,  by  way  of  creation  or  inlarge- 
403.)  ment  of  an  estate,  as  hereafter  in  this  Chapter  shall  appeare. 

in  Uie'chilpter'*  -^°^  ^*  ^^  ^°  ^®   observed,  that  upon  a  release  that  creates  or 
ofReleases.         inlargeth  an  estate,  or  enures  by  way  of  mitter  Testate,  a  rent 
(Post.  273.  b.)     jjiay  be  reserved,  but  not  upon  a  release  that  enureth  by  way  of 
•>!  H  6  8  b       fiii'ftt'f  IC'  droit,  or  which  enures  by  way  of  extinguishment. 
(Ant.  144.  a.)'  The  (c&c.)  in  the  end  of  this  Section  implieth  a  diver- 

sitie  OO^  between  a  release  which  enures  by  way  of  ["194."] 
mitter  V estate  (whereof  Littleton  here  speaketh,  and  a  |_  a.  J 
release  that  enures  by  way  of  extinguishment :  for  of  a 
release  enuring  by  way  of  extinguishment  made  to  the  husband, 
the  wife  shall  take  benefit,  or  to  the  wife,  the  husband  shall 
take  benefit,  as  hereafter  shall  more  at  large  be  said. 


Sect.  306. 


J^ND 


in  some  case  a  release  shall  enure  to  put  all  the  right  ivhich  he 
who  maJceth  the  release  hath  to  him  to  whorn  the  release  is  made.  As 
if  a  man  seised  of  certaine  tenements  is  disseised  hy  tioo  disseisors,  if  the 
disseisee  hy  his  deed  release  all  his  right,  ^c.  to  one  of  the  disseisors,  then 
he  to  ivhom  the  release  is  made,  shall  have  and  hold  all  the  teyiements  to 
him  alone,  and  shall  oust  his  companion  of  every  occupation  of  this.  And 
the  reason  is,  for  that  the  two  disseisors  were  in  against  the  laiv  (pur  ceo 
queles  deux  disseisors  fueront  eins*  encounter  la  ley),  and  when  one  of 
them  happeth  the  release  of  him  which  hath  right  of  entry,  ^c.  this  right 
in  such  case  shall  vest  in  him  to  ivhom  the  release  is  made  (cest  droit  en 
tiel  cas  f  vestera  en  celuy  a  que  le  releas  est  fait),  andhe  is  in  like  plite, 
as  (A)  he  ivhich  hath  the  right  had  entered  and  enfeoffed  him  (et  est  en  tiel 
plyte,  sicome  |  il  que  avoit  droit  ||  avoit  enter,  et  luj  enfeoffa),  ^c. 
And  the  reason  is, for  that  he  which  before  had  an  estate  by  wrong,  scilicet, 
by  disseisin,  ^-c.  hath  noiv  by  the  release  a  rightful  estate  §. 

HERE  Littleton,  pursueth  the  second  part  of  his  division,  viz. 
where  a  release  shall  enure  by  way  of  mitter  le  droit. 
409.  414.  ''         '' 

Post  276.  a.) 

"  Dissessed  hy  two  disseisors,  &c."  The  like  law  is,  where  there 

be  two  joynt  abators  or  intruders,  which  come  in  meerely  by 
wrong.  13ut  if  two  men  do  usurpe  by  a  wrongfuU  presentation 
to  a  church,  and  their  clarke  is  admitted,  instituted  and  inducted, 
and  the  rightfull  patron  releaseth  to  one  of  them,  this  shall  enure 
to  them  both,  for  that  the  usurpers  come  not  in  merely  by 
wrong,  but  their  clarke  is  in  by  admission,  and  institution,  which 

are 

(A)    The  word  [{seems  to  he  here  requisite  to  the  sense  of  the  passage. 

*  ses  tenements  per  tort,  per  eux  J  il — sil  in  L.  arid  M.  and  Boh. 

h\i  added  in  L.  and  M.  and  Roh.  ||  etc.   added:    avoit  enter,  et  not  in 

t  vestera — vest  in  L.  and  M.  and  L.  and  M.  nor  Roh. 

Jloh.  §  <^'c-  added  in  L.  ana  M.  and  Roh. 


L.  3.  C.4.  S.  307.  Of  Tenants  in  Common.  [194.  a.  194.  b. 

are  judiciall  acts  [r?].    And  therefore  an  usurpation  shall  worke  M  T'^^^  ^■ 
a  remitter  to  one  that  hath  a  former  right.  o'^'^'^e  imp.  144 

(1  Roll.  Abr. 
"  Thenhe  to  wJiom  tJie  release  is  made,  shall  have  and  hold  all  eei,  662. 
the  tenements,  d-c."    Here  by  operation  of  law  presently  upon  the  Post.  ?,6S.  a. 
deliverie  of  the  release  the  whole  freehold  and  inheritance  is  ^g"''^*)*^'   * 
vested  in  him  to  whom  the  release  is  made,  and  all  the  state  that 
the  other  disseisor  had,  wholly  devested  :  for  right  and  wrong  can- 
not consist  together,  but  the  wrongfull  estate  giveth  place  to  the 
rightfull.     And  the  reason  hereof  is  for  that,  as  hath 

[194.1  been  said,  the  disseisor  to  whom  the  release  J5@°"  was 
b.    J  made  was  seised  per  mi/  et  per  font,  whereunto  when 

the  right  commeth  it  excludeth  the   wrong  [c] ;   for  M  Brit.  fol.  116. 
right  which  is  lawfull,  and  wrong  that  is  contrary  to  law,  can-  .^^  e**  3.^29.   ' 
not  stand  together.  21  ii.  6. 41. 

22  H.  6.  22. 
"In  like  plite  as  if  he  which  hath  the  right  had  entered  and  en-  ^  ^-  ^  g^- 
feoffedhim,d^c."  This (tfr.)  doth  implie  that  this  is  true. sec?mf/«m  \\  11.7.12. 
quid  (1),  but  not  simpliciter  (2) ;  for  as  to  the  holding  out  of  the  20  H.  7.  .5. 
joynt  disseisor,  it  amounts  to  as  much  as  if  he  had  entered  and  ^1  H-  7. 18. 
infeoffed  him  to  whom  the  release  is  made,  but  it  doth  not  amount  iTisjcontin.  i. 
to  an  entrie  and  feoffment  simpUcith-  to  all  purposes,  as  shall  be  9  H.  6. 37. 
said  iiereafter  in  his  proper  place  in  the  Chapter  of  Releases.        ^1  H.  6.  52. 

Sect.  307. 

A  ND  in  some  case  a  release  shall  inure  hy  way  of  extinguishment^ 
and  in  such  case  such  release  shall  aide  the  jointenant,  to  lohom  the 
release  was  not  made,  as  ivell  as  him  to  whom  the  release  ivas  made  (et  en 
tiel  case  tiel  releas  aydera  le  joyntenant  a  que  le  release  ne  fuit  fait, 
auxybien  come  flnj  a  que  le  release  fuit  fait).  As  if  a  man  be  disseised 
(sicome  |un  home  soit  disseisie),  and  the  disseisor  makes  a  feoffment  to 
two  men  in  fee,  §  if  \\  the  disseisee  release  hy  his  deed  to  one  of  the  feoffees, 
this  release  shall  enure  to  both  the  feoffees  (donques  ^  eel  release  urera  a 
ambideux  les  feoffees),  for  that  the  feoffees  have  an  estate  by  the  law, 
scilicet,  hy  feoff ment,  and  not  by  ivrong  done  to  any,  ^c.  (3). 

HERE  Littleton  speaketh  of  the  third  kind  of  releases.     And 
the  reason  of  this  diversitie  (implied  in  the  (ctr.)  in  the  end 

of 

f  luy — a  celui  in  L.   and  31.  and  §  if  not  in  L.  and  M.  or  Eoh. 

Roh.  II  and  added  in  L.  and  M.  and  Roh. 

J  si  added  in  L.  and  31.  hut  not  in  ^  eel  tiel  in  L.  and  31.  and  Roh. 
Roh. 


(1)  i.  e.  in  some  respects; — as  to  some  persons. 

(2)  \.  e.  absolutely. 

(3)  The  42d  and  44th  chapters  of  Britton  contain  much  curious  learning 
on  the  estate  of  a  disseisor,  and  on  the  difference  of  his  situation  before  and 
after  he  acquires  an  established  possession,  and  before  and  after  he  acquires  a 
title  to  his  estate,  and  on  the  consequential  diff'erences  of  the  situation  and 
remedies  of  the  disseisee  in  these  respects. — These  chapters  throw  some  light 
upon  Sir  Edward  Coke's  Commentary  on  this  Section. — [Note  81.] 


194.b.  195.  a.]  Of  Tenants  in  Common.  L.  3.  C.  4.  S.  308-9. 

of  this  Section)  between  the  disseisors  and  their  feoffees,  is  for 

that  the  feoffees  comming  in  by  title  and  purchase  are  intended 

in  law  to  have  a  warrantie  (which  is  much  esteemed  in  law;  and 

therefore  lest  the  warrantie  should  be  avoided,  the  release  shall 

enure  to  both  the  feoffees  in  favour  of  purchasers,  and  so  the  right 

[/]  2  H.  3.  and  benefit  of  every  one  saved.     [/]  And  in  antient  time  if  the 

Ass.  432. 1  Ass.   disseissor  had  made  a  feoffment  in  fee,  or  a  gift  in  taile,  or  a  lease 

21  Ass^28  ^'  ^  '  ^^''  ''^*^'  ^"^^  ^'^^  feoffee,  donee,  or  lessee  had  continued  in  seisin 

27  Ass.  68.  32.     quietly  a  yeare  and  a  day,  the  entrie  of  the  disseisee,  had  not  been 

29  Ass.  54.  lawful!  upon  him;  and  the  reason  was,  for  the  benefit  and  safe- 

40  E^^3  24  guard  of  the  warrant}'  (which  was  intended  b}'  law)  should  have 

50  e!  i.  2L         beene  destroyed  by  the  entrie.     But  hereof  also  more  shall  be 

3  R.  2.  Entry       said  in  his  proper  place  in  the  Chapter  of  Releases. 

conp;.  38. 

13  E.  3.  tit.  Ass.  9.     12  Ass.  20. 


foJ?;"-^""-  Sect.  308. 

77V  the  same  manner  it  is,  if  the  disseisor  maJceth  a  lease  to  a 

manforterme  of  his  life,  the  ICP  remainder  over  to  another  ri95. 1 
in  fee  ^  if  the  disseisee  release  to  the  tenant  for  terme  of  life  all  L  ^-  J 
his  right,  ^-e.  this  release  shall  inure  as  well  to  him  in  the  re- 
mainder, as  to  the  tenant  for  terme  of  life.  And  the  reason  is,  for  that 
the  tenant  for  life  commeth  to  his  estate  by  course  of  law,  and  therefore 
this  release  shall  enure  and  take  effect  by  way  of  extinguishinent  of  the 
right  of  him  which  releaseth,  ^c.  And  by  this  release  the  tenant  for  life 
hath  no  ampler  nor  greater  estate  than  he  had  before  the  release  made  him, 
and  the  right  of  him  which  releaseth  is  altogether  extinct.  And  inasmuch 
as  this  release  cannot  enlarge  the  estate  of  the  tenant  for  life,  it  is  reason 
that  this  release  shall  enure  to  him  in  the  remainder,  ^c. 
More  shall  be  said  of  releases  in  the  Chapter  of  Releases. 

"  rp niS  release  shall  inure  as  well  to  him  in  the  remainder  as  to 
the  tenant  for  terme  of  life,  &c."     Of  this  and  the  rest  of 
this  Section,  for  avoyding  of  repetition,  more  shall  be  said  in  his 
proper  place  in  the  Chapter  of  Releases. 

"  All  his  right,  &c."  Here  by  this  (<£-c.)  is  implied,  title 
demand,  and  other  words  which  may  transfer  the  right,  &c. 
Also  here  is  implyed  of  in  or  to  the  land. 


Sect.  309. 

A  LSO,  if  tivo  parceners  be,  and  the  one  alieneth  that  to  her  belongeth 
to  another,  then  the  other  parcener  and  the  alienee  are  tenants  in 
common. 

This  is  evident  and  needeth  no  explication. 

Sect. 


L.  3.  C.  4.  S.  310.  Of  Tenants  in  Common.  [195.  a.  195.  b. 


Sect.    310.  (Ant.  114.  a.) 


ALSO,  *  note,  that  tenants  in  common  may  he  hy  f  title  of  pre- 
scription, as    if  the    one  and   his    ancestors^  or  they  whose 
estate  he  hath  in  one  moitie  have  holden  in  common  the 


V    '     same  moitie  loith  the  other  tenant  ivhich  hath  the  other  moity, 
and  with  his  ancestors,  or  tvith  those  whose  state  he  hath  undi- 
vided %,  time  out  of  minde  of  man.     And  divers  other  manners  may 
make  and  cause  men  to  he  tenants  in  common,  which  are  not  here  ex- 
prest,  II  ^c.  (1) 


OF 


*  note  that  not  in  L.  and  M.  or  Roh.         |  &c.  added  in  Roh. 
f  title  of  not  in  Roh.  1|  &c.  not  in  Roh. 


(1)  When  lands  are  given,  in  undivided  shares,  to  two  or  more,  for  particu- 
lar estates,  so  as  that,  upon  the  determination  of  the  particular  estates,  in  any 
of  those  shares,  they  remain  over  to  the  other  grantees,  and  the  reversioner  or 
remainder-man  is  not  let  in  till  the  determination  of  all  the  particular  estates, 
the  grantees  take  their  original  shares  as  tenants  in  common,  and  the  remain- 
ders limited  among  them  on  the  failure  of  the  particular  estates,  are  known  by 
the  appellation  of  cross  remainders. — These  remainders  may  be  raised  both  by 
deed  and  will :  in  deeds,  when  the  limitations  are  legal,  they  can  only  be  cre- 
ated by  express  words,  but  in  wills,  they  may  be  raised  by  implication. — lu 
the  case  of  Gilbert  v.  Witty,  Cro.  Jac.  655.  it  was  said  by  justice  Dodderidge, 
that  cross  remainders  should  never  be  raised,  even  in  wills,  by  implication, 
between  more  than  two  persons.  This  doctrine  received  some  countenance 
from  what  was  said  by  the  courts  in  the  cases  of  Cole  v.  Levingstone,.  1  Ven- 
tris,  224.  Holmes  v.  Meynell,  sir  Thomas  Raymond,  452.  and  some  other 
cases.  But  it  seems  entirely  exploded  by  the  cases  of  Burden  v.  Burville,  B. 
R.  East.  Term,  13  Geo.  3.  Duke  of  Richmond  v.  Earl  of  Cadogan,  determined 
in  the  court  of  chancery  in  May  1773.  Wright  v.  Holford,  and  others,  B.  R. 
Easter  Term  1774,  Cowp.  31.  and  some  other  subsequent  cases.  It  seems 
however  to  be  admitted  in  these  cases,  that,  to  raise  cross  remainders  between 
more  than  two,  stronger  implication  is  required,  than  to  raise  them  between 
two  only. — This  general  outline  of  the  doctrine  of  the  raising  cross  remain- 
ders by  implication,  is  supported  by  the  late  cases  of  Atherton  v.  Pye,  4 
Durn.  &  East,  710.  Doe  v.  Cooper,  1  East,  229.  Watson  v.  Foxon,  2  East, 
36. — And  see  Mr.  serj.  Williams's  note,  1  Saund.  185.  c*  But  where  the  ex- 
pressions, supposed  to  import  cross  remainders,  arise  on  limitations  of  equitable 
estates,  particularly  if  they  arise  in  directions  for  a  settlement,  or  in  any  other 
trusts  of  an  executory  nature,  cross  remainders  may  be  raised  by  implication 
in  deeds,  in  the  same  manner  as  in  wills.  Green  v.  Stephens,  17  Ves.  jun. 
64.  and  the  case  of  the  Duke  of  Richmond  v.  Earl  of  Cadogan,  there  cited. 
In  the  limitations  of  cross  remainders,  two  circumstances  particularly  should 
be  attended  to ;  one,  that  the  clauses  by  which  they  are  created,  should  not  be 
so  expressed,  as  to  make  it  necessary,  that  the  party  taking  under  them  should 
be  alive  at  the  time  of  the  decease  and  failure  of  issue  of  the  other. — The  case 
of  Watts  V.  Wainwright,  5  Durn.  and  East,  427.  is  important  upon  this  head, 
— In  that  case  there  was  a  limitation  by  deed  "to  such  child  or  children,  that 
"  Mary  Aboil  should  thereafter  have,  as  tenants  in  common,  if  more  tbau 
"  one,  in  tail  general;  and,  in  case  any  such  child  or  children  should  die  with- 

"  out 


195.  b.J    Of  Tenants  in  Common.     L.  3.  C.  4  Sect.  311. 

HE.  3.  Trans.     AF  tliis,  besides  Littleton,  there  is  as  good  authoritie  in  law,  as 
212.  13  E.  3.        y.)  there  is  for  all  his  other  cases  throughout  his  three  bookesj 
j,"j  g'  jg  J^        but  joyntenants  cannot  be  by  prescription,  because  there  is  sur- 
Lib.  intrat.  23.     vivor  between  them,  but  not  between  tenants  in  common. 
The  two  i&c.)  in  this  Section  are  evident. 


Sect.  311. 

« 

ALSO,  in  some  case  tenants  in  common  ought  to  have  of  their  pos- 
session several  actions,  and  in  some  cases  they  shall  joyne  in  one 
action  (2).  For  if  two  tenants  in  common  he,  and  they  he  disseised,  they 
m.ust  have  %  two  assises,  and  not  one  assise  ;  for  each  of  them  ought  to 
have  one  assise  of  his  moity,  ^-c.  And  the  reason  is,  for  that  the  tenants 
in  common  were  seised,  ^c.  hy  several!  titles.  But  otherwise  it  is  of 
jointenants  ;  for  if  twenty  jointenants  he,  and  they  he  disseised,  they 
shall  have  in  all  their  names  hut  one  assise,  hecause  they  have  not  (A) 
hut  one  joynt  title  (pur  ceo  que  lis  n'ont  forsque  un  joynt  title.) 

IN 

(A)  77(6  tcoid  "not"  should  he  left  out,  as  this  mode  of  expression,  though  good  in  JF'rench, 
does  n>t  suit  the  idiom  of  the  English  language.     See  Mr.  Jiitso's  Intr.  p.  HI. 

I  against  the  disaeisor  added  in  Roh. 


"  out  issue  of  his,  her,  or  their  body  or  bodies  issuing,  then  the  part  or  parts 
*'  of  him,  her,  or  them  so  dying  without  issue,  should  go  and  remain  to  the 
"  use  of  the  surviving  child  or  children  of  the  said  Mary  Abell,  and  the  heirs 
"■  of  his,  her,  or  their  respective  bodies  issuing :  And  so,  toties  qvottes,  as  any 
"  of  the  said  children  should  die  without  issue,  till  there  should  be  only  one 
"  child  left:  And  in  case  all  the  said  children  should  die  without  issue,  or, 
"  if  the  said  Mary  Abell  should  have  no  issue  of  her  body,  then,  to  the  use  of 
"  Robert  Abell,  his  heirs  and  assigns  for  ever."  Mary  Abell  married  Mr. 
John  ^Yainwright,  and  died  leaving  three  children,  John,  Mary  and  Robert. 
Mary  married  Mr.  Watts,  and  died  leaving  issue,  an  eldest  son,  and  two  other 
children.  John  married,  and  afterwards  died  without  issue.  The  question 
was,  Whether,  as  Mary  died  in  her  brother's  life-time,  and  consequently  did 
not  at  his  decease  sustain  the  description  of  a  surviving  child,  her  eldest  son 
became  entitled  to  a  share  of  John's  third  part? — The  court  thought  the  word 
"  surviving"  was  rcferrible,  not  only  to  the  children,  but  to  the  whole  line  of 
the  heirs  of  their  bodies;  and,  upon  that  ground,  held  the  eldest  son  entitled. 
In  Foquctt  V.  Worsley,  1  East,  416,  the  general  doctrine,  that,  in  deeds,  cross 
remainders  can  only  be  raised  by  proper  words  of  limitation,  was  confirmed. 
Another  circumstance  to  be  attended  to  in  these  limitations,  is,  that  they 
should  be  so  expressed,  as  to  pass,  not  only  the  original  share  of  the  party,  but 
the  shares  surviving  or  accruing  to  him,  or  his  issue,  on  the  decease,  and  failure 
of  issue  of  any  other  of  them.  For  the  surviving  or  accruing  share  may  be 
considered  as  a  distinct  limitation,  and  may  consequently  be  thought  not  to 
remain  over,  unless  this  is  signified.  The  same  observations  apply  to  the 
trusts  of  personal  estate.  On  the  last  head,  see  Perkins  v.  Micklethwaite.  1 
Peere  Williams,  274.  and  the  cases  there  collected  by  Mr.  Cox. — [Note  82.] 

(2)  The  reader  will  find  what  Littleton  and  his  commentator  say  on  this  sub- 
ject confirmed  and  exemplified  by  the  cases  cited  in  Viner  and  Bacon's 
Abridgments,  and  Comyn's  Digest,  under  the  proper  Titles. 


L.3.C.4.  S.312,13.  Of  Tenants  in  Common.  [195.b.l96.a. 

1  N  this  Section  we  learne  two  things  :  first,  that  in  reall  actions  [.^"^'j.^^^^jsi 
•A-  and  in  actions  also  that  are  mixt  with  the  personalty,  tenants  ^^7^°^^  ^^'   ^^^^ 
in  common  shall  sever  in  action,  because  they  have  several  free-  Litt.  Sect.  314.) 
holds,  and   claime  in   by  severall  titles ;  and  therefore  as  they 
shall  be  severally  by  others  impleadeu,  so  shall  they  severally 
implead  others  in   all  reall  and  mixt  actions,  unlesse  it  be  in 
case  of  necessity  for  a  thing  entire,  as  hereafter  in  this  Chapter 
shall  appeare.     And  Liitleton  here  putteth  the  case  of  the  assise 
which  is   mixt  with  the  personaltie,  and   therefore    he  needeth 
not  put  any  case  of  any  pr«a))e  quod  reddat ;  for  if  it  be  so  4  E.  4.  18.  b. 
in  case  of  assise,  d  fortiori  in  writs   of   higher  nature  which  (-^nte  ISO.  b.) 
is  necessarily  implyed  in  the  {&c.)     Now  of  suits  that  sound 
in  the  realty,  and  of  personal  actions,  LiUlcton  speaketh  here- 
after in  this  Chapter.     The  second   thing   here   to  be   learned, 
is  the  diversitie   between  tenants  in  couimon  and  joyntcnants, 
which  both  of  it  selfe,  and  upon  that  which   hath  been  said,  is 
apparent. 


v\'-\ 


iw  Sect.  312.  Sf  "■''"" 


ALSO,  if  three  joyntcnants  he,  and  one  release  to  one  of  kisfelloives 
all  the  right  which  he  hath,  <p.  and  after  the  "other  two  he  disseised 
of  the  whole,  .ja.  in  this  ease  the  ttvo  others  shall  have  f  several  assise,  ^c 
in  this  manner,  viz.  they  shall  have  in  hoth  their  names  on  assise  of  the 
two  parts,  ^c.  hecause  the  two  'parts  they  held  jointly  at  the  time  of  the 
disseisin.  And  as  to  the  third  part,  he  to  whom  the  release  was  made, 
ought  to  have  of  that  an  assise  in  his  oion  name,  for  that  he  {as  to  the 
same  third  part)  is  thereof  tenant  in  common  (pur  ceo  que  %  il  (quant  a 
meme  le  tierce  part)  est  de  ceo  tenant  in  common),  c^c.  hecause  he 
commeth  to  this  \\  third  part  hy  force  of  the  release,  and  not  only  hy  force 
of  the  joynture. 

This  is  put  for  an  example,  (which  ever  doth  illustrate  the 
rule)  and  is  evident  of  itsclfe,  and  the  {&<■.)  in  this  Section 
needeth  no  further  explication. 


Spot     '^l'^  (Ant.  164.  a.) 

OLLl.    OlO.  (8  Rep.  86.  b.) 

ALSO,  to  the  suing  of  actions  which  touch  the  realty  (quant    a  suer 

des  actions  que   touchant  §  le  realty),  there  he   diversities  hetween 

'parceners  which  are  in  hy  divers  descents,  and  tenants  in  common.  For  if 

a  man  seised  of  certain  land  in  fee  hath  issue  two  daughters  and  dyeth, 

and  the  daughters  enter,  c^-'c.  and  each  of  them  hath  issue  a  son,  and  die 

without 

*  other  not  in  Rob.  |1  fhird  not  in  Roh. 

•j-  &c.  added  in  Roh.  §  en  added  in  Roh. 

'^W  not  in  Roh. 


196.  a.  196.  b.J  Of  Tenants  in  Common.  L.  3.  C.  4.  S.  314. 

withoxit  partition  made  between  them  [car  si  ^  home  seisie  de  certaine 
terre  en  fee  ad  issue  deux  **  files  ft  ^t  morust,  et  les  files  entront,  &c.  et 
chescun  de  eux  ad  issue  un  fits,  et  devieront  sauns  partition  fait  enter 
eux),  hi/  ivhich  the  one  moiety  descends  to  the  son  of  the  one 
parcener,  and  the  other  moity  descends  to  the  ]§^^  son  of  the  ri96."j 
other  parcener,  and  they  enter  and  occupie  in  common  and  be  V  ^-  J 
disseised,  in  this  case  they  shall  have  in  their  two  yiames  one 
assise,  and  not  two  assises.  And  the  cause  is,  for  that  albeit  they  come  in 
by  divers  descents,  S^c.  yet  they  are  j^arceiiers,  and  a  ivt'it  of  partition 
lieth  betiveen  them.  And  they  are  not  parceners,  having  regard  or  respect 
only  to  the  seisin  and  possession  of  their  tnothers  (ejant  regarde  ou  re- 
spect tantsolement  a  *  le  seisin  et  possession  de  lour  meres),  but  they 
are  parceners  rather,  having  respect  to  the  estate  which  descended  from 
their  grandfather  to  their  mothers,  for  they  cannot  be  parceners  if  their 
mothers  ivere  not  parceners  before,  f  ^e.  And  so  in  this  respect  and  con- 
sideration, viz.  as  to  the  first  descent  ivhich  ivas  to  their  mothers,  they 
have  a  title  in  parcenarie,  the  ivhich  makes  them  parceners.  And  also 
they  are  but  as  one  heire  to  their  common  ancestor,  viz.  to  their  grand- 
father, from  ivhom  the  land  descended  to  their  mothers.  And  for  these 
causes,  before  partition  between  them,  ^c.  they  shall  have  an  (B)  assise, 
although  they  come  in  by  several  descents  J. 

(Ante  164.  a.)  This,  upon  that  which  hath  been  said  in  the  Chapter  of  Par- 

'-^'^^'  ceners,  is   evident :    where  you   may  reade  excellent   points  of 

learniug,  and  diversities  concerning  this  matter ;  all  which  are 

here  either  expressed  or  iniplyed,  as  the  studious  and  diligent 

reader  will  observe. 


Sect.  314. 

A  LSO,  if  there  be  two  tenants  in  common  of  certaine  land  in  fee,  and 
they  give  this  land  to  a  man  in  taile,  or  let  it  to  one  for  terme  of  life, 
rendering  to  themyearely  a  certaine  rent,  and  a  pound  of  pepper,  and  a 
hawke  or  a  horse,  and  they  be  seised  of  this  service,  and  afterwards  the 
whole  rent  is  behind,  and  they  distrainefor  this,  and  the  tenant  maketh 
rescouse.  In  this  ease  as  to  the  rent  and  pound  of  pepper  they  shall  have  two 
assizes,  and  as  to  the  hawke  or  the  horse  but  one  assise.  And  the  reason 
why  they  shall  have  two  assises  as  to  the  rent  and  pound  of  pepper  is  this, 
insomuch  as  they  ivere  tenants  in  common  in  severall  titles,  and  when  they 
made  a  gift  in  taile  or  lease  for  life,  saving  to  them  the  reversion,  and 
rendering  to  them  a  certaine  rent,  tfv.  such  reservation  is  incident  to  their 
reversion  ;  and  for  that  their  reversion  is  in  common,  and  by  severall  titles, 

as 

(B)  an  seems  to  here  inserted  /or  one.     jS^ee  Mr.  Ritso's  Tntr.  p.  111. 

^  home — deux  parceners  in  Roh.         *  le — lour  in  Roh. 

**  files — fites  in  Roh.  t  &c.  not  in  Roh. 

IJ  et  morust,  et  les  files  entront,  &c.     \  d:c.  added  in  Roh. 
et  chescura  de  eux  ad  issue  un  tits,  not 
in  Roh. 


L.3.C.4.S.314.  Of  Tenants  in  Common.  [196.b.l97.a.&b. 

as  their  possession  was  before  the  rent  and  other  things  which  may  he 
severed,  and  were  reserved  unto  them  upon  the  gift,  or  upon  the  lease, 
which  are  incidents  by  the  law  to  their  reversion,  such  things  so  reserved 
were  of  the  iiature  of  the  reversion.  And  in  as  much  as  the  reversion  is 
to  them  in  common  by  severall  titles,  it  behoveth  that  the  rent  and  the 
pound  of  pepper,  which  may  be  severed,  be  to  them  in  common,  and  by 
severall  titles-  And  of  this  they  shall  have  two  assises,  and  each  of 
them  in  his  assise  shall  make  his  plaint  of  the  moitie  of  the  rent,  and 
of  the  moitie  of  the  pound  of  pepper.  But  of  the  hawke  or  of  the  horse, 
ivhich  cannot  be  severed,  they  shall  have  but  one  assise,  for  a  man  can- 
not make  a  plaint  in  an  assise  of  the  moitie  of  a  hawke,  nor  of  the 
moitie  of  a  horse,  ^c.  In  the  same  manner  it  is  of  other  rents  and  of 
other  services  which  tenants  in  common  have  in  grosse  by  divers  titles,  ^c. 

"  TNthis  case  as  to  the  rent  and  j^ound  of  pepper,  they  shall  have 

two  assises,  and  as  to  the  hawke  or  the  horse  but  one  assise." 

But  for  the  better  understanding  hereof  it  is  to  be 

[197.  "I  known,  that  if  two  B@°  tenants  in  common  be,  and  (Ante  147.  b.) 
a.     J  they  grant  a  rent  of  20  shillings  per  annum  out  of  P'-  Com.  Hill 

their  land,  the  grantee  shall  have  two  rents  of  20  shil-  *  Grange's  case, 
lings,  for  that  every  man's  grant  shall  be  taken  most  strongly  vide  Sect.  219. 
agaiilst  himselfe,  and  therefore  they  be  several  grants  in  law.       (^  Rep.  7.  b. 

But  if  they  two  make  a  gift  in  taile,  a  lease  for  life,  &e.  reserv-  ^'°^'^-  ^^^-  "•) 
ing  twenty  shillings  rent  to   them  and  their  heires,  they  shall  (5  Rep.  ill. 
have  but  one  20  shillings,  for  they  shall  have  no  more  than  them-  ^^^^  l^^-  ^•) 
selves  reserved  :  and  the  donee  or  lessee  shall  pay  but  20  shillings 
according  to  their  own  expresse  reservation :  and  albeit  the  re- 
servation of  rents  severable  be  in  joynt  words,  yet  in  respect  of 
the  several  reversions  the  law  make  thereof  a  severance.     Now 
for  the  rent,  as  namely  20  shillings  or  a  pound  of  pepper  may 
be  severed,  the  one  tenant  in  common  may  have  an  assise  for  the 
moity  of  20  shillings,  and  the  moitie  of  a  pound  of  pepper,  de 
medietate  unius  libr'  piperls,  but  he  cannot  have  an  assise  of  ten 
shillings,  or  de  dimidio  librae  piperis.     But  for  the  hawke  or  vide  16  Ass. 
horse,  albeit  they  be  tenants  in  common,  they  shall  joyne  in  an  pi-  1- 
assise,  for  otherwise  they  should  be  without  remedie,  for  one  of  '^  ^'^' 
them  cannot  make  his  plaint  in  assise  of  the  moitie  of  a  hawke,  action  27. 

or  of  a  horse,  for  the  law  will  never  suifor  any  man  to 

[197.1  demand  any  thing  against  the  order  of  OO"  nature  or 
b.     J  reason,  as  before  it  appeareth  by  Littleton,  Section 

129.    Lex  enim  special  naturae  or dinem.    Also  the  law  Regula. 
will  never  enforce  a  man  to  demand  that  which  he  cannot  recover,  Vide  Sect.  129. 
and  a  man  cannot  recover  [/]  the  moytie  of  a  hawke,  horse,  or  of  [l]  Lib.  5.  fo.  21. 
any  other  entire  thing:  Lexneminevicogrtadvana,seuinutilia.   Regula. 
But  in  that  case  they  shall  joyne  in  an  assise,  and  the  reason  is,  ^nfJ°i:;7  a 
N^e  curia  Domini  Regis  deficerit  injustitid  exhibendd,  or  Lex  nan  Hob.  43.  267.) 
debet  dejicere  conquerentibus  injustitid  exhibendd.     And  if  they  [*]  "^  ^-  '^-  19. ». 
should  not  joyne,  they  should  have  damnum  etinjuriam,  nndi-^ei  \q~  oil.  Abr. 
should  have  no  remedie  [*]  by  law,  which  should  be  inconvenient,  Noy,  184. 
but  the  law  will,  that  in  every  case  where  a  man  is  wronged  and  Ante  137. 
endaramaged,  that  he  shall  have  remedie.     Aliquid  conceditur  L^w'^o^o'] 
ne  injuria  remanent  impunita  quod  alias  nan  concederetur.  Regula. 

[mj  And  tenants  in  common  shall  joyne  in  a  quare  impedit,  [m]  5  H.  7.  8. 
because  the  presentation  to  the  advowson  is  entire.  i-'i  E-  2. 

Quare  imp.  170. 
33  H.  6.  11.     6  E.  4.  10.     16  E.  3.  Darr.  presentment,  10. 

Vol.  II.— 9  Also 


197.  b.  198.  a.]  Of  Tenants  in  Common.  L.  3.  C.  4.  S.  315. 


[n]  6  H.  4.  6.  7.  [n]  Also  tenants  in  common  of  a  seigniory  shall  joyne  in  a 
45  E.  3. 10.  -v^rit  of  rijjht  of  ward,  and  ravishment  of  ward  for  the  bodie,  be- 
j/     og  cause  it  IS  entire. 

18  E.  3!  56.  If  two  tenants  in  common  be  of  the  wardship  of  the  bodie, 

(Moor,  184.  and  one  doth  ravish  the  ward,  and  the  one  tenant  in  common 
1  Roll.  Rep.  releases  to  the  ravisher,  this  shall  go  in  benefit  of  the  other 
tenant  in  common,  and  he  shall  recover  the  whole,  and  this  re- 
lease shall  not  be  an}'  bar  to  him.  And  so  it  is  if  two  tenants 
in  common  be  of  an  advowson,  and  they  bring  a  quare  imjiedit, 
and  the  one  doth  release,  yet  the  other  shall  sue  forth,  and  re- 
cover the  whole  presentment. 

Two  tenants  in  common  shall  joyne  in  a  detinue  of  charters, 
and  if  the  one  be  nonsuit,  the  other  shall  recover. 
IS  E.  3.  56.  It  is  said  that  tenants  in  common  shall  joyne  in  a  Warrantia 

Chartse,  but  sever  in  voucher. 

"  Moitie  of  a  horse,  &c."     Here  is  implyed   or  any  other 
entire  rent  or  service. 

"  B^  divers  titles,  &c."     That  is  by  severall  titles,  and  not 
by  one  joynt  title,  as  hath  beene  said. 


Sect.  315. 

ALSO,  as  to  actions  personals  tenants  in  common  may  have  such 
actions  personals  joyntly  in  all  their  names,  as  of  trespasse 
(*sIcome  de  trespas),  or  f  of  offences  which  concerne  their  tenements  in 
common,  as  for  breaking  their  houses,  breaking  their  closes,  feeding, 
wasting,  and  defowling  their  grasse,  cutting  their  ivoods,  for  fishing  in 
their  pischary  (sicome  de  bruser),  %  lour  measons,  ||  de  enfreinder  de 
lour  closes,  de  pasture,  degaster,  et  de  fouler  §  des  herbes,  de  couper 
lour  bois,  **  de  pischer  en  lour  pischarie),  and  such  like.  In  this  case 
(ft  Et  en  cest  cas)  tenants  in  common  shall  have  one  action  joyntly, 
and  shall  recover  joyntly  their  damages,  because  the  action  is  in  the 
personalty,  and  not  in  the  realtie,XX^c. 


29  E.  3.  51.  "  IX/tAY  have  such  actions  personals  joynily  in  all 

43  E.  3.  24.  *J'-M.     jZ,„,. , ^.„  >7       "D„  (.!,;„  <K:;xa.;f  „.^.,.„„,.-^*V,  *!,«<■ 

46  E.  3.  27. 


43  E.  3.  24.  •^  -^   their  names,  &c."    By  this  J8@°-it  appeareth  that  ri98.1 

H4  3  tenants  in  common  shall  have  pcrsonall  actions  joyntly.  L     ^-     J 


14  li.  4.  31.  And  it  is  to  be  observed,  that  where  damages  are  to 

3  H.  6.  57.  be  recovered  for  a  wrong  done  to  tenants  in  common,  or  parce- 

22  H  6  u  ^^^^  ^^  ^  personall  action,  and  one  of  them  die,  the  survivor  of 

18  E.  4.  30!  them  shall  have  the  action;  for  albeit  the  property  or  estate  be 

2  R.  3. 16.  severall  between  them,  yet  (as  it  appeareth  here  by  Littleton) 


21  H  7  92  *^®  personal  action  is  joynt. 

37  H.  6.  35.     21  E.  4.  12.     (1  Sid.  157.     Cro.  Jac.  231.     1  Sid.  49.     2  Roll.  Abr.  91. 

10  Rep.  134.  a.) 


*  sicome — cest  assavoir  in  Roh.  §  des — de  lour  in  Roh. 

f  of  not  in  Roh.  '**  et  added  in  Roh. 

j  de  added  in  Roh.  ff  Et  not  in  Roh. 

II  de  not  in  Roh.  jl  &c.  not  in  Roh. 


"And 


L.  3.  C.4.  S.  316.  Of  Tenants  in  Common.  [198.  a.  198.  b. 

"  And  such  like."     Hereby  is  implied  a  diversity  between  a  vide  Sect.  319. 
chattel  in  possession,  and  a  personall  chuse  in  action  belonging  320,  321. 
unto  them.     As  if  two  tenants  in   common  be  of  land,  and  one 
doth  a  trespasse  therein,  of  this  action  they  are  jointenants,  and 
the  survivor  shall  hold  place.     So  it  is  if  two  tenants  in  common  (2  Cro.  19.) 
be  of  a  manor,  and  they  make  a  bailifc  thereof,  and  one  of  them  22  H.  6. 12. 
dieth,   the  survivor  shall  have  the  action  of  account,  for    the  ^3  y^  3* 
action  given  unto  them  for  the  arrerages  upon  the  account  was  Account,  126. 
joint.     So  it  is  if  two  tenants  in  common  sow  their  laud,  a^id^^E.  3.  13,  14. 
one  doth  eate  the  same  with   his  cattle,  though  they  have  the'^  j^^y^' ^35^ 
corne  in  common,  yet  the  action  given  to  them  for  trespasse  in  2  Roll.  Abr.  90. 
the   same  is  joynt,  and  shall   survive.     For  the  trespasse    and  Moor,  40.  71. 
damage  done  to  them  was  joynt,  all  which  here  is  implyed  by      '' 
Littleton,  who  saith,  that  they  shall  have  an  action  joyntly,  and 
the  same  law  is  of  coparceners. 

But  if  two  tenants  in  common  be  of  goods,  as  of  an  horse  or  (Post.  200.  a. 
of  any  other  goods  personall,  there  if  one  dye,  his  executors  7  Rep.  Hall's 
shall  be  tenant  in  common  with  the  survivor.  lO^Rep.  134.* 

Ante  185.)     38  E.  3.  5.    17  E.  3.  11.    3  H.  5.    Quare  Imp.  71.    14  H.  4.  12.     9  H.  6.  30. 

22  11.4.14.     37  11.  6.9.  b.     10  Eliz.  Dyer,  279.     F.  N.  B.  36.    9  E.  3.  36,  37.    PI.  Com. 

Seignior  Barclay's  case. 

"  And  not  in  the  realtie,  &c"  If  two  tenants  in  common  be 
of  an  advowson,  and  a  stranger  usurps,  so  as  the  right  is  turned 
to  an  action,  and  they  bring  a  writ  of  Quare  inij^edit  which 
concernes  the  realtie,  the  sixe  months  passe,  and  the  one  dyeth, 
the  writ  shall  not  abate,  but  the  survivor  shall  recover,  other- 
wise there  should  be  no  remedie  to  redresse  this  wrong.  And 
so  it  is  of  coparceners,  and  this  is  one  exception  out  of  our 
author's  rule. 

[rt]  But  if  three  coparceners  recover  land  and  damages  in  an  [„]  14  E.  3. 
assise  of  Mordancester,  albeit  the  judgement  be  joynt,  that  they  Execution,  75. 
shall  recover  the   land   and    damages,  yet  the   damages    being  *^^^^'^* 
accessory,  though   they  be   personall,   do   in  judgement  of  law  2  Roll.  Abr.  86. 
depend  upon  the  freehold  being  the  principal,  which  is  severall.  3  Rep.  14.  b. 
And  though  the  words  of  the  judgement  be  joint,  yet  shall  it  ^^f  pfn^^Ab^* 
taken  for  distributive.     And  therefore  if  two  of  them  dye,  the  gss.) 
entire  damages  do  not  survive,  but  the  third  shall  have  execu- 
tion according  to  her  portion ;  and  this  is  another  exception  out 
of  our  author's  rule.     But  if  all  three  had  sued  execution  by  force 
of  an  Elegit,  and  two  of  them  had  dyed,  the  third  should  have 
had  the  whole  by  survivor,  till  the  whole  damages  be  paid. 

If  the  aunt  and  niece  join  in  an  action  of  waste,  for  waste  done  45  e,  3.  3.  b. 
in  the  life  of  the  other  sister,  the  aunt  shall  recover  the  damages 48  E.  3.  14. 
only,  because  the  same  belongs  not  by  law  to  the  niece.     And  ]}  |!-  *•  ^^-  ^• 
some  hold  the  damages  in  that  case  to  be  the  principall.  he!  2. 

Wast.  115.     2  Cro.  19.     Ante  63.  b. 


Sect.  31G.  I'^S'^V"- 

A  LSO,  if  tivo  tenants  in  common  make  a  lease  of  their 

tl98."l  ^^^  tenements  to  another  for  terme  cf  yeares,  rendring  to 

b.    J  them  a   certaine  rent  yearely  during  the  terme,  if  the  re7it  be 
behind,  ^c.  the  tenants  in  common  shall  have  an  (A)  action  of 

debt 

(A)  an  seems  to  bo  hero  inserted  for  one.     See  Mr.  Ritso's  Intr.  p.  111. 


198.b.l99.a.]  Of  Tenants  in  Common.  L.3.C.4.S.317,8,9. 

debt  against  the  lessee,  and  not  divers  actions,  for  that  the  action  is  in 
the  personalty  (pur  ceo  que  Tactioii  est  en  *  la  personalty). 

This  upon  that  which  hath  been  said  is  evident. 


Sect.  1 317. 

J)  UT  in  an  avowry  for  the  said  rent  they  ought  to  sever,  for  this  is 
in  the  realty,  as  the  assise  is  above. 

Vid.  9.  3.  36,37.       This  being  an  addition  to  Littleton,  albeit  it  be  consonant  to 
PI.  Com.  Seig-     law,  yet  1  omit  it. 
nior  Barkley's 
case. 

(3tat.  32n.  8.  Q  ^-.Q 

Ante  167.  a.  OeCt.    oio. 

187.  a.) 

j^LSO,  tenants  in  common  may  well  make  partition  between  them  if 
they  ivill,  but  they  shall  not  be  compelled  to  make  partition  by  the 
law  (cement  que  ils  %  ne  serront  compelles  de  faire  partition  per  la 
ley);  but  if  they  make  partition  between  themselves  by  their  agreement 
and  consent,  such  partition  is  good  enough,  as  is  adjudged  in  the  book 
of  assises  \\. 

*  Vid.  Sect.  259.       Of  this  suflScient  hath  been  said  in  *  the  Chapter  of  Parceners 

290  247.264.       and  Joyntenants. 

J  J  Ass.  p.  X. 

30  Ass.  D   8 

47  E.  3.  22.  " ^^  the  hook  of  assises."     This  booke  is  of  greate  authoritie 

in  law,  and  is  so  called  because  it  principally  containeth  the 
proceedings  upon  writs  of  assise  of  novel  disseisin,  which  in 
those  dayes  vi sis  festimim  et  frequens  remedium. 


Sect.  319. 

J^LSO,  as  there  be  tenants  in  common  of  lands  and  tenements,  ^c,  as 
aforesaid,  in  the  same  manner  there  be  of  chattels  reals  and  per- 
sonals (sicome  y  sent  tenants  en  common  de  terres  et  tenements,  &c. 
come  est  avantdit,  en  mesme  le  manner  y  sont  §  de  chattels  reals  et 
personals).  As  if  a  lease  be  made  (sicome  **  lease  soit  fait)  of  certaine 
lands  to  two  men  for  terme  of  20  yeares,  and  when  they  be  of  ...  ^(-.  _. 
this  possessed,  the  J^^  one  of  the  lessees  grant  that  which  to  \  ^  ' 
him  belongeth  to  another  during  the  terme,  then  he  to  whom 
the  grant  is  made  and  the  other  shall  hold  and  occupie  in  common. 

"  GRANT 

*  la  not  in  L.  and  M.  or  Roh.  |j  &c.  added  in  L.  and  M.  and  Roh. 

t  No  part  of  this  Section  in  L.  and  §  possessions    et    proprietors    added 
M.  or  Roh.  in  L.  and  M.  and  Roh. 

X  ne  not  in  Roh.  hut  in  L.  and  M.  **  si  added  in  L.  and  M.  and  Roh. 


L.3.C.4.  S.320-21.  Of  Tenants  in  Common.  [199.a.l99.b. 

^^  f^  RANT  that  which  to  him  helongeth."     The  same  law  it  is  Vide  Sect.  315. 

if  the  one  lessee  in  this  case  make  a  lease  for  part  of  the  ^^["^  192!  a.) 
terme,  the  second  lessee  and  the  other  are  tenants  in  common,  as 
hath  been  said  in  the  Chapter  of  Joyntenants  (B).    The  (cfcc.)  in 
this  Section,  implyeth  other  hereditaments  whereof  men  may  be 
tenants  in  common,  whereof  sufficient  hath  been  said  before. 

(B)   The  same  case  is  also  menticned  ante  192.  a. 


Sect.  320. 

A  LSO,  if  two  *  have  f  joyntly  the  wardship  of  the  body  and  land  of 
an  infant  within  age^  and  the  one  of  them  grant  to  another  that 
which  to  himself e  helongeth  of  the  same  ward,  then  the  grantee,  and  the 
other  which  did  not  grant,  shall  have  and  hold  this  in  common,  ^c. 

HEREBY  it  appeareth,  that  there  may  be  tenants  in  common  le  e.  3.  tit.  Aid. 
as  well  of  chattels  reall  entire,  as  wardship  of  the  body, 
&c.  as  of  chattels  personal,  as  a  hawke  or  a  horse.  If  two  ten- 
ants in  common  be  of  a  seigniory,  and  a  ward  fall,  they  are  ten- 
ants in  common  of  the  wardship  aswel  of  the  body  as  land. 
And  so  it  is  if  the  land  it  selfe  escheat  to  them,  they  shall  be 
tenants  in  common  thereof,  and  so  it  is  of  parceners. 

"in  common,  &c."     Here  (c&c.)  implyeth  any  other  entire  Vide  devant, 
chattell.  Sect.  315. 


Sect.  321. 

TN  the  same  manner  it  is  of  chattels  personals.  As  if  two  have  X  joyntly 
by  gift  or  by  buying  a  horse  or  an  oxe,  ^c.  and  the  one  grant  that  to 
him  belongs  \\  of  the  same  horse  or  oxe  to  another,  the  grantee,  and  the 
other  which  did  not  grant,  shall  have  and  possess  such  chattels  personals 
in  common  §.  And  in  such  cases,  ivhere  divers  persons  have  chatteh 
real  or  personall  in  common  1,  and  by  divers  titles,  if  the  one  of  them 
dieth,  the  others  which  survive  shall  not  have  this  as  survivor, 

[199. 1  but  the  J|@°"  executors  of  him  which  dieth  shall  hold  and  occu- 
b-     J  pie  this  with  them  which  survive,  as  their  testator  did  or  ought 
to  have  done  in  his  life  time,  ^c.  because  that  their  titles  and 
rights  in  this  were  severall,  ^c. 

This  is  evident  enough,  and  hereof  sufficient  hath  been  said  Vide  devant, 

.     r.  °    '  Sect.  315. 

beiore. 

Sect. 

*  joyntenants  added  in  L.  and  M.  ||  of  the  same  horse  or  oxe  not  in 

and  Roh.  L.  and  M.  or  Roh. 

■\  joyntly  not  in  L.  and  M.  or  Roh.  §  &c.  added  in  L.  and  M.  and  Roh. 

\  jointly — a  joynt  estate,  in  L.  and  \  &c.  added  in  L.  and  M.  and  Roh. 
M.  and  Roh. 


199.  b.]  Of  Tenants  in  Common.  L.  3.  C.  4.  S.  322, 323. 


Sect.  322. 

A  LSO,  in  the  ease  aforesaid,  as  if  two  have  an  estate  in  common  for 
terme  of  yeares,  ^c.  the  one  occwpy  all,  and  put  the  other  out  of 
possession  and  occupation,  he  which  is  put  out  of  occupation  shall  have 
against  the  other  a  writ  of  ejectione  firmse  of  the  moietie,  ^c. 


Sect.    323. 

TN  the  same  manner  it  is  where  two  hold  the  ivardship  of  lands  or 
tenements  during  the  nonage  of  an  enfant,  if  the  one  oust  the  other  of 
his  possession,  he  which  is  ousted  shall  have  a  ivrit  of  ejectment  de  gard 
of  the  moitie,  ^c.  because  that  these  things  are  chattels  reals,  and  may  he 
apportioned  and  severed,  ^c.  hut  no  *  action  of  trespasse  (videlicet)  Quare 
clausum  suum  fregit,  et  herbam  suam,  &c.  conculcavit,  et  consump- 
sit,  &c.  et  hujusmodi  actiones,  &c.  the  one  cannot  have  against  the  other, 
for  that  each  of  them  may  enter  and  occupie  in  common,  ^c.  per  my  et 
per  tout,  tlie  lands  and  tenements  §  which  they  hold  in  common.  But  if 
two  he  possessed  of  chattells  personalis  in  common  hy  divers  titles,  as  of  a 
horse,  an  oxe,  or  a  cowe,  ^c.  if  the  one  take  the  whole  to  himselfe  out  of 
the  possession  of  the  other,  the  other  hath  no  other  remedie  hut  to  take 
this  from  him  who  hath  done  to  him  the  wrong  to  occupie  in  common,  ^e. 
when  he  can  see  his  time  (quant  f  il  poet  veier  son  temps,)  ^c.  In  the  same 
manner  it  is  of  chattels  realls,  which  cannot  he  severed,  as  in  the  case 
aforesaid,  where  tivo  he  possessed  of  the  wardship  of  the  hodie  of  an  infant 
within  age,  if  the  one  taketh  the  infant  out  of  the  possession  of  the  other, 
the  other  hath  7io  remedie  hy  an  action  hy  the  law,  hut  to  take  the  infant 
out  of  the  possession  of  the  other  when  he  sees  his  time  |. 

(Sid.  49.)  "  Jp  OR  terme  of  yeares,  &c."     For  one  yeare,  halfe  a  yeare, 

^     &c. 

(Hob.  120.  '^  The  one  occupy  all,  and  put  the  other  out  of  jiossession." 

Plo.  247.  These  are  words  materially  added,  for  albeit  one  tenant  in  com- 

Mo'  123  375  )     ^^^"^  ^^^^  *^^  whole  profits,  the  other  hath  no  remedie  by  law 

against  him,  for  the  taking  of  the  whole  profits  is  no  ejectment  (1) : 

But  if  he  drive  out  of  the  land  any  of  the  cattell  of  the  other 

tenant 

*  such  added  in  L.  and  M.  and  Roh.         J  &c.  added  in  L.  and  M.  but  not 
§  &c.  added  in  L.  and  M.  and  Roh.     in  Roh. 
^  il  not  in  L.  and  M.  or  Roh. 

(1)  But  now,  by  the  stat.  of  the  4th  of  Ann.  chap.  16.  sect.  27.  actions  of 
account  may  be  maintained  by  one  jointenant  and  tenant  in  common,  his 
executors  and  administrators,  against  the  other,  as  bailiff,  for  receiving  more 
than  comes  to  his  share  and  proportion,  and  against  the  executors  and  adminis- 
trators of  such  jointenant  or  tenant  in  common;  and  the  auditors  appointed  by 

the 


L.3.C.4.Sect.323.  Tenants  in  Common.  [199.b.200.a.&b. 

tenant  in  common,  or  not  sufifer  him  to  enter  or  occupy  the  hind, 
this  is  an  ejectment  or  expulsion,  whereupon  he  may  have  ejec-  l^^^^^l^^^'';. 
tione  firmce,  for  the  one  moietie,  and  recover  damages  for  the  ^^^.^   Jacf  611.) 
entrie,  but  not  for  the  meanc  profits. 

^^  Ejectione  firmce  of  the  moietie,  &c."     Here  by  this  and  the  (2  Rep.  68. 
other  {&c.)  in  these  two  Sections,  are   to   be  understood  divers  F.  N.  B.  197.) 
diversities  betweene  actions  which  concerne  right  and  interest,  (as 
of  ejectione  firm se,  ejectment  de  yard,  qiiare  ejccit  infra  terminum 
of  a  chattel  real  upon  an  expulsion   or  ejectment)   and  actions 
concerning  the  bare  taking  of  the  profits  rising  off  the  land  or 
doing  of    trespasse  upon  the   land,  as  here   by  the  examples  21  E.  4.  11.  22. 
do  appeare,  for   the   right  is    severall,  and    the   taking   of  the  43  E.  .3.  24. 

profits  in  common.     The  second  diversity  is  between  ^^  ^  g*  J^'  ^g 

tSOO.~|  B^°chattels  reals  that  are  apportionable  or  severable,  as  SH.  6.  17.' 
a.     J  leases  for  yeares,wardship  of  lands, interest  of  tenements  19  H.  6.  57. 
by  elegit,  statute  merchant,  staple,  &c.  of  lands  and   2  £^4^23^' 
t  enements  and  chattels  reals  entire,  as  wardship  of  the  body,  a  14  e.  4.  s'. 
villeine  for  yeares,  &c.  for  if  one  tenant  in  common  take  away  the  18  E.  4.  30. 
warde,  or  the  villeine,  <fec.  the  other  hath  no  remedie  by  action,  ^J  e  3  29' 
but  he  may  take  them   again.     Another  diversitie  is  between  12  Ass.'28.' 
chattells  realls  and  chattells  personalis,  for  if  one  tenant  in  com-  47  E.  3.  22.  b. 
mon-  take  all  the  chattells  personals,  the  other  hath  no  remedy  by  }^  ^-  ^-  In- 
action, but  he  may  take  them  again ;  and  herein  the  like  law  is  ^7  e!  2.' 
concerning  chattells  realls  entire,  and  chattells  personall  for  this  Account,  122. 
purpose.     But  of  chattels  entire,  as  of  a  sheep,  horse,  or  any  1^"t^' l^'^' "^'^ 
other  entire  chattell,  reall  or  personall,  no  survivor  shall  be  be-  Trespas.  178. 
tween  them  that  hold  them  in  common ;  and  tenants  in  common  11  H.  4.  3. 
shall  not  joyne  in  an  ejectione  firmse,  nor  in  a  writ  of  ejectment  (Sir  The  Ray. 
de  yard,  or  a  quare  ejccit  infra  terminum,  &c.  for  that  these  ac-  21' E.  4.  11  12. 
tions  concerne  the  right  of  lands  which  are  severall.  (Ant.  Sec.  311. 

&  fol.  197.  b.) 


If  two  tenants  in  common  be  of  a  manor,  to  the  which  waife  13  E.  3. 
and  stray  doth  belong,  a  stray  doth  happen,  they  are  tenants  in  i^Vi^il  Abr. 
common  of  the  same,  and  if  the  one  doth  take  the  stray,  the  other  666.) 
hath  no  remedy  by  action,  but  to  take  him   againe.     But  if  by 
prescription  the  one  is  to  have  the  first  beast  happening  as  a 
stray,  and  the  other  the  second,  there  an  action  lieth  if  the  one 
take  that  which  pertains  to  the  other. 

If  two  tenants  in  common  be  of  a  dove-house,  and  the  one  47  e.  3.  22.  b. 
destroy  the  old  doves,  whereby  the  flight  is  wholly  lost,  the  other 
tenant  in  common  shall  have  an  action  of  trespasse,  qnare  vi  et 
armis  columbare  lepl'  frcyitet  duccntas  columbusjyrctij.  40.  s.  ni- 
terfecet,per  quod  volatam  colnmharix  sui  totaliter,  amisit :  for  the 
whole  flight  is  destroyed,  and  therefore  he  cannot  in 

tSOO.~j  B&°  bar  plead  tenancie  incommmon.     And  so  it  is  if  4  e.  3.  Trespas. 
b.     J  two  tenants   in    common    be    of  a  parkc,  and   one  233. 
destroyeth  all  the  deer,  an  action  of  trespasse  lieth. 
[c]  If  two  tenants  in  common  be  of  land,  and  of  mote  stones,  [c]  1  h.  5. 1. 
j)ro  metis  et  bundis,  and  the  one  take  them  up  and  carrie  them  2  H.  5.  3. 
away,  the  other  shall  have  an  action  of  trespasse  quare  vi  et  armis 

against 

the  court,  where  such  action  shall  be  depending,  are  empowered  to  administer 
an  oath,  and  examine  the  parties  touching  the  matters  in  question,  &c.  See 
also  1  Leo.  219.— [Note  88.] 


200.  b.]    Of  Tenants  in  Common.  L.  3.  C.  4.  Sect.  323. 


[d]  13  E.  3. 
Trespas,  212. 
19  R.  2  Br.  927. 
11  E.  3. 
Trespas,  212. 
Vid.  18  H.  6.  sr 

[e]  13  H.  7.  26. 
[/]  F.  N.  B.  127. 
Reg.  163. 
(Ant.  54.  b.) 


17  E.  2.  tit. 
Account,  22. 
8  E.  2, 
Account,  115. 
30  E.  1. 
Account,  127. 
45  E.  3.  10. 
47  E.  3.  22.  b. 

38  E.  3.  9. 
22  E.  3.  60. 
3  E.  3.  27. 

39  E.  3.  7.  82. 
F.N.  B.llS,  I. 
10  H.  7.  16. 
2  E.  4.  25. 
(Ant.  1 72.  a. 
F.  N.  B.  118. 

1  Roll.  Abr.  118. 

2  Inst.  379.) 
W.  3.  ca.  23. 


[,y]  27  H.  8.  13. 
21  E.  3.  29. 
29  E.  3.  39. 
3  E.  2.  Wast.  35. 
F.  N.  B.  59.  D. 
F.  N.  B.  49.  I. 


«47  E.  3.  22. 
50  E.3.  3. 


10  E.  4.3.  b. 
22  H.  6.  42. 
21  E.  3.  47. 

17  E.  3.  47. 

18  E.  4.  27. 
28  E.  3.  4. 
(2  Inst.  403. 

11  Rep.  49. 
Ant.  53.  b. 
F.  N.  B.  59. 
2  RoU.  Abr.  6 


against  him,  in  like  manner  as  he  shall  have  for  the  destruction 
of  doves. 

[a]  If  to  tenants  in  common  be  of  a  folding,  and  the  one 
of  them  disturbe  the  other  to  erect  hurdles,  he  shall  have  an 
action  of  trespasse  quare  qi  et  armis  for  this  disturbance. 

[e]  If  two  several  owners  of  houses  have  a  river  in  common 
between  them,  if  one  of  them  corrupt  the  river,  the  other  shall 
have  an  action  upon  his  case. 

[/]  If  two  tenants  in  common,  or  jointenants,be  of  an  house 
or  mill,  and  it  fall  in  decay,  and  the  one  is  willing  to  repaire  the 
same,  and  the  other  will  not,  he  that  is  willing  shall  have  a  writ 
de  reparatione  faciendd  ;  and  the  writ  saith,  ad  reparationem  et 
sustentationeni  ejus  dem  domus  teneantur  ;  whereby  it  appeareth, 
that  owners  are  in  that  case  bound  p/-o  bono  pablico  to  maintain 
houses  and  mills  which  are  for  habitation  and  use  of  men. 

If  one  joyn  tenant  or  tenant  in  common  of  land  maketh  his  com- 
panion his  baylife  of  his  part,  he  shall  have  an  action  of  account 
against  him,  as  haih  been  said.  But  although  one  tenant  in  com- 
mon or  jointenant  without  being  made  baylife  take  the  whole 
profits,  no  action  of  account  lieth  against  him;  for  in  an  action 
of  account  he  must  charge  him  either  as  a  guardian,  baylife,  or 
receiver,  as  hath  been  said  before,  which  he  cannot  do  in  this 
case,  unless  his  companion  constitute  him  his  bailife.  And 
therefore  all  those  bookes  which  affirm  that  an  action  of  account 
lieth  by  one  tenant  in  common,  or  jointenant,  against  another, 
must  be  intended  when  the  one  maketh  the  other  his  bailife,  for 
otherwise  never  his  bailife  to   render  an  account  is  a  good  plea. 

If  there  be  two  tenants  in  common  of  a  wood,  turbarie,  pis- 
charie,  or  the  like,  and  one  of  them  doth  wast  against  the  will  of 
his  companion,  his  companion  shall  have  an  action  of  wast,  and 
he  that  did  the  wast  before  judgment,  hath  election  either  to 
take  his  part  in  certaintie  by  the  sherife  and  the  oath  of  men,  &c. 
or  that  he  grant,  that  from  thenceforth  he  shall  not  do  wast  but 
according  to  his  portion,  &c.  and  if  he  make  choice  of  a  certain 
place,  then  the  place  wasted  shall  be  assigned  to  him.  [(/]  But 
this  extends  not  to  coparceners,  because  they  were  compellable 
to  make  partition  by  the  common  law  :  and  this,  as  it  is  said,  doth 
extend  as  well  to  tenants  in  common  and  joyntenants  for  life,  as 
to  an  estate  of  inheritance.  But  if  one  tenant  in  common,  or 
joyntenant  of  a  dove-house  destroy  the  whole  flight  of  doves,  no 
action  of  wast  doth  lie  in  that  case  upon  the  said  statute,  *as 
some  do  hold. 

If  lands  be  triven  to  two,  and  to  the  heires  of  one  of  them,  and 
the  tenant  for  life  doth  wast,  he  that  hath  the  inheritance  shall 
have  no  action  of  waste  by  the  statute  of  Gloucester,  but  upon  the 
statute  of  W.  2.  he  shall  have  an  action  of  wast.  And  it  is  to  be 
known,  that  one  tenant  in  common  may  infeoflfe  his  companion, 
but  not  release,  because  the  freehold  is  severall.  Joyntenants 
may  release,  but  not  infeoffe ;  because  the  freehold  is  joynt; 
but  coparceners  may  both  infeoffe  and  release,  because  their 
seisin  to  some  intents  is  joynt,  and  to  some  severall  (1). 
,  403.     Ant.  186.  b.    Post.  355.  a.)  ScCt 


(1)  M.  26  &  27  Eltz.  per  cur.  If  one  coparcener  in  tail  levies  a  fine  to 
another  sur  conusans  de  droit,  &c.  it  does  not  enure  hi/  way  of  release,  but  hy 
way  of  granty  and  it  loill  be  a  discontinuance  and  alteration  of  the  estate  without 

execution. 


I 


L.  3.  C.  4.  S.  324.  Of  Tenants  in  Common.  [200.  b.  201.  a. 

Sect.  324. 

A  LSO,  when  a  man  *  will  shew  a  feoffment  made  to  him,  or  a  gift  in 

taile,  or  a  lease  for  life  of  any  lands  or  tenements,  there  he  shall 

say,  hy  force  of  which  feoffment,  gift,  or  lease,  he  was  seised,  ^-c.  but 

where  one  ivill  plead  a  lease  or  grant  made  to  him  of  a  chattell  real  or 

personal,  then  he  shall  say,  hy  force  of  tvhich  he  ivas  jJossessed,  S^c. 

More  shall  he  said  of  tenants  in  common  in  the  Chapters  of  Releases 
f  and  Tenant  hy  Elegit. 

"  TTE  was  seised,  &c."     Seisin  is  a  word  of  art,  and  in  plead- 

ing  is  only  applied  to  a  freehold  at  least,  as  possessed  for 

distinction  sake  is  to  a   chattell   reall   or  personall. 

[QQl,"]  8^="  As  if  B.  plead  a  feoffment  in  fee,  he  concludeth, 
a.     J  virtute  cujus  proedict.'     B.  fuit  seisitus,  &c.     But  if  (Plowd.  Com. 
he  plead  a  lease  for  yeares,  he  pleadeth,  virtute  cujus  ^'^-  *• 
pnedicfis  B.   intra vit,  et  fuit  inde    possessionatus ;  and  so  of  pio^j,  149.  b. 
chattells  personalis,  virtute  cujus  fuit  inde  possessionatus.  Post.  310.  b. 

And   this   holdeth   not   only  in   case  of  lands  or  tenements  ^"i'l  26.) 
which  lie  in  liverie,  but  also  of  rents,  advowsons,  commons,  &c. 
and  other  things  that  lie  in  grant,  whereof  a  man  hath  an  estate 
for  life  or  inheritance. 

Also  when  a  man  pleads  a  lease  for  life,  or  any  higher  estate 
which  passeth  by  liverie,  he  is  not  to  plead  any  entrie,  for  he  is 
in  actuall  seisin  by  the  liverie  it  selfe.  Otherwise  it  is  of  a 
lease  for  years,  because  there  he  is  not  actually  possessed  untill 
an  entrie. 

Chap. 

*  iji  pleading  added  in  L.  and  M.         f  and  Confirmations  added  in  L.  and 
and  Boh.  M.  and  Roh. 

execution,  because  one  jyarcener  may  enfeoff  another,  and  this  is  a  feoffment  0/ 
record.  But  one  may  release  to  another,  and  it  enures  per  mitter  le  droit. — 
Ld.  Nottingh.  MSS— [Note  SSf.] 


201.  a.]  Of  Estates      L.  3.  C.  5.  Sect.  325. 

Chap.  5.     Of  Estates  upon  Condition.      Sect.  (1)  325. 

JiJSTA  TES  which  men  have  in  lands  or  tenements  *  upon  condition 
are  of  two  sorts  (sont  f  de  deux  maners),  viz.  either  they  have  estate 
upon  condition  in  deed  {scilicet,  \  ou  ils  ont  estate  sur  condition  en  fait), 
or  upon  condition  in  law,  \\  <J'C.  Upon  condition  in  deed  is,  as  if  a  man 
hy  deed  indented  enfeoff es  another  in  fee  §  simple,  reserving  to  him  and 
his  heires  yearely  a  certaine  rent  payable  at  one  feast  or  divers  feasts 
per  annum,  on  condition  that  if  the  rent  he  behind,  ^c.  that  it  shall  be 
lawful  for  the  feoffor  and  his  heires  i7ito  the  same  lands  or  tenements  to 
enter,  ^c.  And  if  it  happen  the  reiit  to  be  behind  by  a  iveek  after  any 
day  of  payment  of  it,  or  by  a  month  after  any  day  of  payment  of  it,  or 
by  half  a  year,  ^c.  that  then  it  shall  be  laivfull  to  the  feoffor  and  his 
heires  to  enter,  ^c.  (Sur  condition  en  fait  est,  sicome  un  home  per  fait 
endent  enfeoffa  un  a  uter  en  fee  simple,  reservant  a  luy  et  a  ses  heires 
annualment  certaine  rent  payable  a  un  feast  ou  a  divers  feasts  per  an, 
sur  condition  que  si  le  rent  soit  aderere,  &c.  que  bien  list  al  feoffor  et 

a  ses 

*  njjon  condition  not  in  L.  and  M.       |  ou  not  in  L.  and  M.  or  Rah. 
or  Roh. '  II  &c.  not  in  L.  and  M.  or  Roh.  '^ 

f  de — en  in  L.  and  M.  and  Roh.        §  simple  not  in  L.  and  M.  or  Roh. 

(1)  The  doctrine  of  conditions  is  derived  to  us  from  the  feudal  law.  The 
rents  and  services  of  the  feudatory  are  mentioned  by  feudal  writers  as  condi- 
tions annexed  to  his  fief.  If  he  neglected  to  pay  his  rent,  or  perform  his  ser- 
vice, the  lord  might  resuuie  the  fief.  But  the  payment  of  rent  and  the  perform- 
ance of  feudal  service  were,  for  a  long  period  of  time,  the  only  conditions  that 
could  be  annexed  to  a  fief;  and,  the  latter,  whether  expressed  or  not,  was 
always  presumed  by  the  law; — being  incident  to,  and  inseparable  from,  the 
estate  of  the  feudatory. — In  this  sense  they  are  called  conditions  in  law,  or  im- 
plied conditions. — Afterwards,  when  other  conditions  were  introduced,  the 
estates  to  which  they  were  annexed  were  ranked  among  improper  fiefs. — See  Sir 
Thomas  Craig,  De  Jure  Feudali,  lib.  2.  dieg.  4,  sect.  1,  2,  3.  Conditions  of 
this  last  sort  were  called  express,  or  conventiouary  conditions.  By  an  applica- 
tion, in  some  respects  very  much  forced,  of  the  original  principle  of  conditions, 
that,  on  the  non-performance  of  them,  the  lord  might  resume  his  fief,  condi- 
tional fees  at  common  law,  and  some  other  modifications  of  lauded  property, 
were  introduced  as  estates  upon  condition.  These  are  often  of  such  a  nature, 
as  to  make  it  more  natural  that  a  stranger  should  have  the  estate  on  the  non- 
performance of  the  condition,  than  the  donor: — and,  that  the  lord,  instead  of 
being  confined  to  his  right  of  resumption,  should  have  it  in  his  power  to  compel 
the  perfoi-mance  of  the  condition,  or  recover  from  the  donee  a  compensation,  or 
satisfaction,  for  the  breach  of  it.  But,  as  all  these  estates  were  introduced  as 
estates  upon  conditions,  the  law,  where  it  still  considers  them  as  conditions,  and 
except  where  it  has  been  altered  by  act  of  parliament,  confines  the  donor's 
remedy  to  the  resumption  of  the  estate,  and  gives  that  remedy  only  to  the 
donor  and  his  heirs. — Considered  in  this  sense,  the  word  Condition  has,  in  our 
law,  a  much  more  contracted  meaning  than  it  has  in  the  civil  law;  where  it 
signifies,  generally,  all  those  pactions,  or  agreements,  which  regulate  that  which 
the  contractors  have  a  mind  should  be  done,  if  a  case,  which  they  foresee, 
should  come  to  pass.  This  is  the  defiuition  of  Domat,  lib.  1.  tit.  1.  sect.  4. — 
[Note  84.] 


L.  3.  C.  5.  Sect.  325.     upon  Condition.     [201.  a.  201 .  b. 

a  ses  heires  en  mesmes  les  terres  ou  tenements  de  entrer,  &c.  Ou  si 
terre  soit  alien  a  un  home  en  fee  rendant  a  luy  certaine  rent,  &c.  (A)  et 
s'il  happa  que  le  rent  soit  aderere  per  un  semaigne  apres  ascun  jour  de 
payment  de  ceo,  ou  per  un  mois  apres  ascun  jour  de  payment  de  ceo, 
ou  per  **  un  demy,  &c.  que  adonques  bien  lirroit  a  le  feoffor  et  a  les 
heires  d'entrer,  &c.)  XX  In  these  cases  if  the  rent  he  not  paid  at  such 
time,  or  before  such  time  limited  and  specified  within  the  condition  com- 
prised in  the  indenture,  then  may  the  feoffor  or  his  heires  enter  into  such 
lands  or  tenements,  and  them  in  his  former  estate  to  have  and  hold,  and 
the  feoffee  quite  to  ousts  thereof  And  it  is  called  an  estate  upon  con- 
dition'because  that  the  state  of  the  feoffee  is  defeasible,  if  the  condition 
be  not  performed,  ^c. 

"  J  J  PON  condition."  Littleton  having  before  spoken  of  estates  Glanyiii.  lib.  lO. 
absolute,  now  beginneth  to  entreate  of  estates  upon  condi-  jib^'2.  caplVe', 
tion.     And  a  conditiou  annexed  to  the  realitie,  whereof  iv*V//eto«  7,  <s,c. 
here  speaketh  in  the  legall  understanding,  est  modus,  a  qualitie  lib-  4.  fol.  213. 
annexed  by  him  that  hath  estate,  interest,  or  right,  to  the  same,  foi''89."99. 114. 
■whereby  an   estate,  &c.  may  either  be  defeated,  or  enlarged,  or  130.205,206, 
created  upon  an  inecrtaine  event.      Conditio  dicitur  cum  quid  in  207.  249. 
casum  incertum  qui  potest  tendere  ad  esse  aut  non  esse  confer  tur.    ^^  '^^  \'\ih  5 

ca.  5.  Mirr. 
'"  Upon  condition  in  deed,"  quce  est  facti,  that  is  upon  a  con-  cap.  2.  sect.  15. 
dition  expressed  by  the  partie  in  legall  termes  of  law.  (Piow  ''3  a 

1  Roll.  Abr. 

"  Or  upon  condition  in  laio,  &c."  quce  est  juris,  that  is,  tacith  420.  2  Rep. 
created  by  law  without  any  words  used  by  the  partie.  Again,  '"'*■) 
Littleton  subdividcth  conditions  in  deed  (though  not  in  expresse 
words)  into  conditions  precedent  (of  which  it  is  said,  Conditio 
adimpleri  debet  priusquam  sequatur  effectus)  and  conditions  sub- 
sequent. Again,  of  conditions  in  deed  some  be  affirmative, 
and  some  in  the  negative;  and  some  in  the  affirmative,  which 
imply  a  negative  ;  some  make  the  estate,  whereunto 

t 301.1  they  are  annexed,  voydable  by  entrie  or  clayme,  and 
b.     J   some  make  the  J[t^"  estate  void   ipso  facto,  without 
entrie  or  claime. 
Also  of  conditions  in  deed,  some  be  annexed  to  the  rent  re- 
served out  of  the  land,  and  some  to  collaterall  acts,  &c.  some  be 
single,  some  in  the  conjunctive,  some  in  the  disjunctive,  as  bhall  Mir.  cnp.  2. 
evidently  appear  in  this  Chapter,  where  the  examples  of  these  ^'^*^'*  ^^  *  ^'' 
divisions  shall  be  explained  in  their  proper  place. 

"  In  lav),  d-c."  Of  conditions  in  law  more  shall  be  said  here- 
after in  this  Chapter. 

"  Upon  condition  in  deed  is,  as  if  a  man  hy  deed  indented,  &c. 
Here  Littlrfon  putteth  one  example  of  six  severall  kinds  of  con- 
ditions. That  is,  first,  of  a  single  condition  in  deed.  Secondly, 
of  a  condition  subsequent  to  the  estate.     Thirdly,  a  condition 

annexed 

**  un — demy  not  in  L.  and  M.  or         XX  ^^d   added    in  L.  and  M.  and 
Eoh.  Rob. 

(A)  Part  0/ the  original  French  inhere  inserted,  because  the  words  rendant  a  luy  cer- 
taine rent,  &c."  are  not  noticed  in  the  tronslatiun  of  the  section,  though  the  same  words 
are  Qommented  upon  hy  lord  Coke,  post  201.  6. 


201.  b.  202.  a.]  Of  Estates      L.  3.  C.  5.  Sect.  325. 

annexed  to  the  rent,  &c.  Fourthly,  a  condition  that  defeateth 
the  estate.  Fifthly,  a  condition  that  defeateth  not  the  estate 
before  an  entrie.  And  lastly,  a  condition  in  the  affirmative, 
which  implyeth  a  negative,  (as  behind  or  unpaid  implieth  a 
negative)  viz.  not  paid.  All  which  do  appeare  by  the  expresse 
words  of  Littleton. 

"  Rend'  a  luy  certaine  rent,  &c.  (B)"     Here  by  this  {(Ssc.^  Is 
implyed  for  life,  in  taile,  or  in  fee. 

"In  these  cases  if  the  rent  be  not  paid  at  such  time,  &c.  then 

may  the  feoffor  or  his  heires  enter,  &c."  By  this  Section,  and  by 

the  ((fee.)  therein  contained,  six  things  are  to  be  understood. 

First,  Where  our  author  saith,  if  the  rent  he  behind,  that  though 

[i]  40  Ass.  11.      the  rent  be  behind  and  not  paid  [i],  yet  if  the  feoffor  doth  not 

20  H.  6.  30,  31.    demand  the  same,  &c.  he  shall  never  re-enter  (1),  because  the 

19  H  6  76  \^'^^  is  the  principal  debtor ;  for  the  rent  issueth  out  of  the  land, 

20  H.  6.  32.  and  in  an  assise  for  the  rent  the  land  shall  be  put  in  view ;  and 
22  H.  6.  46.  if  the  land  be  evicted  by  a  title  paramount,  the  rent  is  avoyded, 
weiv's'case'  fo  ^"^^  after  such  eviction  the  person  of  the  feoffee  shall  not  be 
70.  &  Hill  and"  charged  therewith,  for  the  person  of  the  feoffee  was  only  charged 
Grange's  case,     ^ith  the  rent  in  respect  of  the  grant  out  of  the  land. 

fNo  23  1  Roll  Secondly  the  demand  must  be  made  upon  the  land,  because 
Abr.  459!  460.  '  the  land  is  the  debtor,  and  that  is  the  place  of  demand  appoint- 
Perk.  sect.  827.    ed  by  law  (2). 

Noy,  23.)  j£  ^j^g  jjjjjg  i32a]jeth  a  lease  for  yeares,  rendering  a  rent  payable 

at  his  receipt  at  Westminster,  and  after  the  king  granteth  the  re- 
Lib.  4.  fo.  72. 73.  version  to  another  and  his  heires,  the  grantee  shall  demand  the 
Boroughe's  case.  ^^^^  vi^^on  the  land  and  not  at  the  king's  receipt  at  Westminster ; 
for  as  the  law  without  expresse  words  doth  appoint  the  lessee  in 
the  king's  case  to  pay  it  at  the  king's  receipt,  so  in  case  of  a 
subject,  the  law  appoints  the  demand  to  be  on  the  land  (3). 
49  Ass.  5.  _  If  there  be  a  house  upon  the  same,  he  must  demand  the  rent 

16  Ehz.  Di.  329.  ^^  ^j^^  house.  And  he  cannot  demand  it  at  the  back  door  of  the 
house  but  at  the  fore  door,  because  the  demand  must  ever  be 
made  at  the  most  notorious  place.  And  it  is  not  material  whe- 
ther any  person  be  there  or  no. 

Albeit  the  feoffee  be  in  the  hall  or  other  part  of  the  house,  yet 

[c]  Bendloes  the  feoffor  need  not  [<? ]  but  come  to  the  fore  door,  for  that  is  the 
s'ph'^^&^Mt*      place  appointed  by  law  albeit  the  door  be  open. 

[d]  ib  Eliz.  "  [d]  Cfc5"  If  the  feoffment  were  madeof  a  wood  only,  rSO^."! 
Dyer,  329.           the  demand  must  be  made  at  the  gate  of  the  wood  or  L      a.     J 

at  some  high  way  leading  through  the  wood,  or  other 
(Ante,  145.  a.)     most  notorious  place.     And  if  one  place  be  as  notorious  as  an- 
other, the  feoffor  hath  election  to  demand  it  at  which  he  will,  and 

albeit 

(B)  See  ante  note  A  on  Sect.  325. 

(1)  By  special  consent  of  the  parties,  a  re-entry  may  be  for  default  of  pay- 
ment of  rent  without  demand  of  it.     5  Rep.  40.  b. — [Note  85]. 

(2)  For  the  place  of  performing  the  condition  see  Litt.  Sect.  340,  and  the 
Commentary  on  that  Section. 

(3)  The  prior  of  St.  John  Jerusalem  made  a  lease  for  years,  reserving  rent, 
with  a  condition  of  re-entry  and  afterwards  surrendered  the  priory  and  all  its 
possessions  to  the  king.  The  judges  were  of  opinion,  that  the  king,  by  reason 
of  his  prerogative,  might  take  advantage  of  the  condition  without  demand, 
though  the  prior  himself  could  not.     5  Rep.  56.  a.  b. — [Note  86]. 


L.  3.  C.  5.  Sect.  325.      upon  Condition.  [202.  a. 

albeit  the  feoffee  be  in  some  other  part  of  the  wood  redie  to  pay 
the  rent,  yet  that  shall  not  availe  him.     Et  sic  de  similibus. 

Thirdly,  And  if  the  feoffor  demand  it  on  the  ground  at  a  place 
■which  is  not  most  notorious,  as  at  the  back  door  of  a  house,  &c. 
and  in  pleading  the  feoffor  alledge  a  demand  of  the  rent  gene- 
rally at  the  house,  the  feoffee  may  traverse  the  demand,  and 
upon  the  evidence  it  shall  be  found  for  him,  that  it  was  a  void 
demand. 

Fourthly,  If  the  rent  be  reserved  to  be  paid  at  any  place  from  Lib.  4.  Bo- 
the  land,  yet  it  is  in  law  a  rent,  and  the  feoffor  must  demand  it  at  J!°"^^^'^  ^^^^ 
the  place  appointed  by  the  parties,  observing  that  which  hath  been  pj'  q^^  70^ 
said  before  concerning  the  most  notorious  place. 

Fifthly,  And  all  this  is  to  be  understood  when  the  feoffee  is 
absent ;  for  if  the  feoffee  commeth  to  the  feoffor  at  any  place  upon 
any  part  of  the  ground  at  the  day  of  payment,  and  offer  his  rent, 
albeit  they  be  not  at  the  most  notorious  place,  nor  at  the  last  in- 
stant, the  feoffor  is  bound  to  receive  it,  or  else  he  shall  not  take  (Post.  211.  a.) 
any  advantage  of  the  demand  of  the  rent  for  that  day  (1). 

Sixthly,  Therefore  the  place  of  demand  being  now  known,  it  (7  Rep.  28.) 
is  further  to  be  known  what  time  the  law  hath  appointed  for  the 
same.     This  partly  appeareth  by  that  which  hath  been  last  said. 
For  albeit  the  last  time  of  demand  of  the  rent  is  such  a  convenient 
time  before  the  sun  setting  of  the  last  day  of  payment  as  the 
money  may  be  numbred  and  received,  notwithstanding,  if  the 
tender  be  made  to  him  that  is  to  receive  it  upon  any  part  of  the 
land  at  any  time  of  the  last  day  of  payment,  and  he  refuseth,  the 
condition  is  saved  for  that  time,  for  by  the  expresse  reservation  (5  Rep.  114.  b.) 
the  money  is  to  be  paid  on  the  day  indefinitely,  and  convenient 
time  before  the  last  instant,  is  the  uttermost  time  appointed  by 
law,  to  the  intent  (2)  that  then  both  parties  should  meet  toge-  (2  Cro.  423, 
ther,  the  one  to  demand  and  receive,  and  the  other  to  pay  it,  so  500.) 
as  the  one  should  not  prevent  the  other.     But  if  the  parties  meet 
upon  any  part  of  the  land  whatsoever  on  the  same  day,  the  ten- 
der shall  save  the  condition  for  ever  for  that  time. 

And  if  the  reservation  of  the  rent  be  (as  here  Littleton  putteth  Lib.  5.  fol.  114. 
the  case)  at  certaine  feasts,  with  condition  that  if  it  happen  the  pi*^  qo^^'hui 
rent  to  be  behind  by  the  space  of  a  weeke  after  any  day  of  pay-  a  Grange's  case. 
ment,  &c.  in  this  case  the  feoffor  needeth  not  demand  it  on  the  167.  172. 
feast  day,  but  the  uttermost  time  for  the  demand  is  a  convenient  cV^"/'-/ 
time  (as  hath  been  said)  before  the  last  day  of  the  week,  unlesse 
before  that  the  feoffee  meet  the  feoffor  upon  the  land  and  tender 
the  rent  as  is  aforesaid  (3). 

If 

(1)  For  the  difference  of  the  demand  to  be  made  in  case  of  a  re-entry  to 
avoid  an  estate,  or  the  forfeiture  of  a  sum  nomine  pa-nxv,  and  of  the  demand  to 
be  made  in  case  of  an  entry  to  distrain,  see  before  144.  a. 

(2)  Yet  the  rent  is  not  due  till  the  last  minute  of  the  natural  day ;  for  if 
the  lessor  dies  after  sun-set  and  before  midnight,  the  rent  shall  go  to  the  heir 
and  not  to  the  executors.  1  Saund.  287.  Salk.  578.  {Note  to  the  twelfth 
edition.)— [HoiQ  87.] 

(3)  For  there  is  a  material  difference  between  a  reservation  of  a  rent  payable 
on  a  particular  day,  or  within  a  certain  time  after,  and  a  reservation  of  a  rent 
payable  at  a  certain  day,  with  a  condition  that  if  it  be  behind  by  the  space 
of  any  given  time,  the  lessor  shall  enter.  In  both  cases,  a  tender  on  the  first, 
or  last  day  of  payment,  or  on  any  of  the  intermediate  days,  to  the  lessor  him- 
self, either  upon,  or  out  of  the  land,  is  good.     But,  in  the  former  case,  it  is 

sufficient 


202.  a.  j  Of  Estates  L.  3.  C.  5.  Sect.  325. 

Mich.  40  &  If  a  rent  be  granted  payable  at  a  certaine  day,  and  if  it  be 

41  Eliz.  inter  behind  and  demanded  that  the  grantee  shall  distreine  for  it,  in 
Lib°7^  fo  ^28*'^'  *^^^  ^*^®  ^^^  grantee  need  not  demand  it  at  the  day  ;  but  if  he 
Maunde's  case,    demand  it  at  any  time  after  he  shall  distreyne  for  it,  for  the 

grantee  hath  election  in  this  case  to  demand  it  when  he  will  te 

inable  him  to  distreine. 

8  H.  7.  7.  b.  "  And  them  in  his  former  estate  to  have,  (S)c."  Regularly  it  is 

true  that  he  that  entreth  for  a  condition  broken  shall  be  seised  in 

his  first  estate,  or  of  that  estate  which  he  had  at  the  time  of  the 

estate  made  upon  condition,  but  yet  this  fayleth  in  many  cases. 

4  H.  6.  2.  lib.  8.       1-  I^^  respect  of  impossibility.    As  if  a  man  seised  of  lands  in 

fo.  43,  44.  the  right  of  his  wife  maketh  a  feoffment  in  fee  by  deed  indented, 

Whittingham's     ypQQ  condition  that  the  feoffee  should  demise  the  land  to  the 

Tu  7  6  a  feoffor  for  his  life,  &c.  the  husband  dieth,  the  condition  is  broken, 

(Post.  297.  b.)      in  this  case  the  heire  of  the  husband  shall  enter  for  the  condition 

broken,  but  it  is  impossible  for  him  to  have  the  estate  that  the 

feoffor  had  at  the  time  of  the  condition  made  :  for  therein  he  had 

but  an  estate  in  the  right  of  his  wife,  which  by  the  (A)  coverture 

was  dissolved.     And  therefore  when  the  heire  hath  entred  for  the 

condition   broken  and  defeated  the  feoflfment,  his   estate  doth 

vanish,  and  presently  the  state  is  vested  in  the  wife. 

2.  In 

(A)  77)6  <ext  should  be  read,  it  seems,  as  if  lord  Coke  had  said,  which  by  the  determinatioa 
of  the  coverture.  

sufficient  if  the  lessee  attend  on  the  first  day  of  payment,  at  the  proper  place ; 
and,  if  the  lessor  do  not  attend  there  to  receive  the  rent,  the  condition  is 
saved.     In  the  latter  case,  to  save  the  lease,  it  is  not  sufficient  that  the  lessee 
attends  on  the  first  day  of  payment,  for  he  must  equally  attend  on  the  last 
day.     10  Rep.  129.  a.  Plow.  70.  a.  b.  and  Cropp  v.  Hambleton,  Cro.  Eliz.  48. 
— It  is  to  be  observed,  that  it  was  once  doubted,  whether  proof  of  actual  entry 
and  ouster  was  necessary  in  ejectment,  brought  on  breach  of  a  condition  of 
re-entry. — It  was  afterwards  settled,  that  it  was  not,  but  that,  notwithstanding 
the  confession  of  the  re-entry,  the  demand  of  the  rent  must  be  proved.     Anon. 
1  Vent.  248. — Little  v.  Heaton,  2d  Lord  Raym.  750.  and  1st  Salk.  259.  and 
see  3  Burr.  1896,  1897.  But  now,  by  the  4  Geo.  2.  c.  28.  sect.  2.  landlords  or 
lessors,  having  a  right  by  law  to  re-enter,  for  non-payment  of  rent,  may,  without 
any  formal  demand,  or  re-entry,  serve  a  declaration  in  ejectment  for  the  re- 
covery of  the  demised  premises;  and  shall  recover  judgment  and  execution, 
in  the  same  manner  as  if  the  rent  in  arrcar  had  been  lawfully  demanded,  and 
re-entry  made.     And  if  the  lessee  or  tenant  permits  execution  to  be  executed 
on  such  judgment,  witliout  paying  the  rent  and  arrears,  and  full  costs,  and 
without  filing  any  bill  or  bills  for  relief  in  equity,  within  six  calendar  mcnths 
after  such  execution  executed,  he  shall  be  barred  and  foreclosed  from  all  relief 
in  law  or  equity,  except  by  writ  of  error  for  reversal  of  such  judgment.     By  the 
same  statute,  sect.  4th,  if  the  tenant,  at  any  time  before  the  trial  in  ejectment, 
pays  or  tenders  to  the  lessor  or  landlord  the  whole  rent  in  arrear,  with  the 
costs,  or  pays  such  arrears  and  costs  into  court,  the  proceedings  in  ejectment 
shall  cease,  and  the  tenant  shall  be  relieved  in  equity,  and  hold  the  lands 
demised  according  to  the  old  lease,  without  any  new  lease.    In  Archer  v.  Snapp, 
Andr,  34L  lord  chief  justice  Lee  observes,  that  both  the  courts  of  law  and 
the  courts  of  equity  had,  previous  to  this  statute,  exercised  a  discretionary 
power  of  staying  the  lessor  from  proceeding  at  law,  in  cases  of  forfeiture  for 
non-payment  of  rent,  by  compelling  him  to  take  the  money  really  due  to  him. 
The  same  observation  is  made  in  Bull.  Ni.  Pri.  97.  See  2  Salk.  507.  8  Mod.  345. 
10  3Iod.  383,  and  2  Vern.  103.     1  Wilson,  75.  2  Stra.  900.    So,  in  ^.-cessavit, 
the  defendant,  by  tendering  the  arrears,  and  giving  security,  might  free  himself. 
SeePigot  on  Com.  Rec.  62.— [Note  88.] 


L.  3.  C.  5.  Sect.  325.    upon  Condition.    [202.  a.  202.  b. 

2.  In  respect  of  necessity.  If  Cfstvt/  que  iise  after  the  statute  of 
R.  3,  and  before  the  statute  of  27  //.  8,  had  made  a  feoffment  in 
fee  upon  condition,  and  after  had  entred  for  the  condition  broken  ; 
in  this  case  he  had  but  an  use  when  the  feoffment  was  made,  but 
now  he  shall  be  seised  in  the  whole  state  of  the  land.  So  that  as 
in  the  former  case,  the  ancestor  had  somewhat  at  the  making  of 
the  condition,  and  the  heire  shall  have  nothing  when  he  hath 
entred  for  the  condition  broken,  so  in  this  case  the  feoffor  had 
no  estate  or  interest  in  the  land  at  the  time  of  the  condition  made, 
but  a  bare  usej  yet  after  his  entrie  for  the  condition  broken  he 
shall  be  seised  of  the  whole  state  in  the  land,  and  that  also  for 
necessitie,  for  by  the  feoffment  in  fee  of  Cestui/  que  use,  the  whole 
estate  and  right  was  devested  out  of  the  feoffees.  And  therefore 
of  necessitie  the  feoffor  must  gain  the  whole  estate  by  his  entrie 
for  the  condition  broken. 

Tenant  in  speciall  taile  hath  issue,  and  his  wife  dieth,  tenant  in 

taile  maketh  a  feoffment  in  fee  upon  condition,  the  issue  dieth, 

the  condition  is  broken,  the  feoffor  re-enters,  he  shall 

t303.~|   M^^  have  but  an  estate  for  life,  as  tenant  in  taile  apres 
b.     J  2^ossihilitt/  of  issue  extinct  by  the  re-entry,  and  yet  he  (8  Rep.  43.  44.) 
had  an  estate  taile  at  the  time  of  the  feoffment,  and 
that  also  for  necessity. 

3.  In  some  cases  the  feoffor  by  his  re-entry  shall  be  in  his  (Ante  103.  a.) 
former  estate,  but  not  in  respect  of  some  coUaterall  qualities.   As 

if  tenant  bj  homage  ancestrell  maketh  a  feoffment  in  fee  upon 
condition,  and  entreth  upon  the  condition  broken,  it  shall  never 
beholden  by  homage  ancestrell  again.  And  so  it  is  if  acopihold 
escheate,  and  the  lord  make  a  feoffment  in  fee  upon  condition, 
and  entreth  for  the  condition  broken.  And  the  reason  in  both 
these  cases  is,  for  that  the  custome  or  prescription  for  the  time 
is  interrupted. 

(1)  Lord  and  tenant  by  fealty  and  rent,  the  lord  is  in  seisin  is  Ass.  12. 
of  his  rent,  the  lord  granteth  his  seignory  to  another  and  to  his  ("^  l^ep.  9.  b.) 
heires  upon  condition,  the  tenant  attorneth  and  payeth  his  rent 
to  the  grantee,  the  condition  is  broken,  the  lord  distreineth  for 
his  rent,  and  rescous  is  made,  he  shall  be  in  his  former  estate, 
and  yet  the  former  seisin  shall  not  enable  him  to  have  an  assise 
without  a  new  seisin. 

If  tenant  in  taile  make  a  feoffment  in  fee  upon  condition,  and  3  n,  7,  7, 
dieth,  the  issue  in  taile  within  age  doth  enter  for  the  condition 
broken,  he  shall  be  first  in  as  tenant  in  fee  simple  as  heire  to  his 
father,  and  consequently  and  instantly  he  shall  be  remitted.  ]5ut 
if  the  heire  be  of  full  age,  he  shall  not  be  remitted,  because  he 
might  have  had  his  yo/-mcc/o7t  against  the  feoffee,  and  the  entrie  for  /p,^.  ..cq  •u\ 

the 


(1)  This  is  seemingly  contradicted  by  the  authorities  cited  in  the  margin. 
In  that  taken  from  lord  Coke's  Reports,  it  is  said,  that  "  If  the  lord  grants  his 
"seignory  on  condition,  and  the  tenant  pays  the  rent  to  the  grantee,  and 
*•' afterwards  the  condition  is  broken,  and  the  lord  distrains  for  the  services, 
"upon  rescous  made  he  shall  have  assise,  for  the  seisin  before  in  sutlicient." — 
The  case  reported  in  the  margin  from  the  Book  of  Assises  is  to  the  same  effect. 
But  it  is  to  be  observed,  that,  when  the  lord  distrains,  his  distress  amounts  to 
a  new  entry.  This  may  serve  to  reconcile  the  apparent  contradiction,  in  this 
instance,  between  the  Commentary  and  the  authorities  cited  in  the  margin. 
—[Note  89.] 


202.  b.]  Of  Estates        L.  3.  C.  5.  Sect.  325. 

the  condition  is  his  own  act;  but  more  shall  be  said  hereof  in 

his  proper  place  in  the  Chapter  of  Remitter. 

2  H.  6.  4.  If  a  man  make  a  feoffment  in  fee  of  Blaclce  Acre  and  White 

(1  Roll.  Abr.        Acre  upon  condition,  &c.  and  for  breach  thereof   that  he  shall 

412.)  gntgr  into  Blacke  Acre,  this  is  good. 

If  the  tenant  for  life  make  a  feoflFment  in  fee  upon  condition 

13  E^4.*4."  and  entreth  for  the  condition  broken,  he  shall  be  tenant  for  life 

2  H.  s.V.b.         again,  but  subject  to  a  forfeiture,  for  the  state  is  reduced,  but 

39  Ass.  15  t^g  forfeiture  is  not  purged  (2). 

11  H.  5.  25. 

16  Ass.  47.  (1  Roll.  Abr.  856.     Post.  252.  a.) 

Sect. 


I 


(2)  It  may  be  further  observed,  1st.  That  as  the  entry  of  the  feoffor  on  the 
feoffee  for  a  condition  broken  defeats  the  estate  to  which  the   condition   was 
annexed,  so  it  defeats  all  rights  and  incidents  annexed  to  that  estate,  as  dow^r, 
&c.  and  all  the  mesne  incumbrances  of  the  feoffee.     See  1  Roll.  Abr.  474. 
2dly,  That  every  condition  must  defeat  the  entire  estate,  and  that  a  condition 
cannot  be  so  framed  as  to  make  one  and  the  same  estate  in  any  lands  cease 
as  to  one  person,  and  remain   as  to  another,  or  cease  for  one  time,  and  revive 
afterwards.     6  Rep.  40.  b.  41.  a.     3dly,  That  a  condition  annexed  to  land, 
cannot  be  apportioned  by  any  of  the  parties  themselves,  so  as  to  become  void 
as  to  one  part  of  the  land,  and  to  remain  good  as  to  the  other.     Thus,  in  the 
case  cited  by  Lord  Coke,  4  Rep.  120.  a.  b.  a  lease  was  made  for  tweuty-one 
years,  of  three    manors,  rendering  rent  for  manor  A.  61  for  manor  B.  5/.  and 
for  manor  C.  10/.  to  be  paid  on  a  place  out  of  the  land,  with  a  condition  of 
re-entry  into  all  the  three  manors,  for  default  of  payment  of  the  rents.     The 
lessor  granted  the  reversion  of  part  of  manor  A.  to  one  and  his  heirs ;  and 
afterwards  granted  the  reversion  of  ano  ther  part  to  another  and  his  heirs :  it 
was  adjudged  that    the  second   grantee  should  not  enter   for  the  condition 
brokenj  because  the  condition  was  entire,  and  by  the  severance  of  part  of 
the  reversion,  was  destroyed  in  all.     But  a  condition  may  be  apportioned  by 
act  in  law.     See  the  instance  put  by  lord  Coke,  post.   215.  a.     4thly,  That 
part  of  a  condition  may  be  good,  and  another  part  of  it  may  be  void  in  law; 
as,  if  a  person  makes  a  gift  in  tail  to  the  donor's  eldest  son,  remainder  to  his 
youngest  son  in  tail,  with  a  condition  that,  if  the  eldest  son  alien  in  fee,  his 
estate  shall  cease,  and  the  lands  should  remain  to  the  second  son  in  tail ;  that 
part  of  the  condition  which  prohibits  the  alienation  made  by  tenant  iu  tail, 
is  good  in  law,  but  that  part  of  it,  which  says  that,  upon  such  alienation,  the 
lands  shall  remain  over  is  void,  and  the  donor  may  re-enter.     See  Litt.  Sections 
720,  721,  722,  723,  and  the  Commentary  page  379  b.     And  see  post.  223  b. 
note  1.  379.  b.  note  1.  5thly,  That,  if  A.  be  tenant  for  life,  remainder  in  con- 
tingency, remainder   to  B.   in   tail,  and  A.  before  the  contingency  happens, 
surrender  his  estate  to  B.  his  surrender  bars  the  contingent  remainder.     But, 
if  he  surrenders  on  condition,  and  before  the  contingency  happens,  the  con- 
dition is  broken,  and  .4.  enters  on  the  estate,  the  contingent  remainder  is  re- 
revived.     See  Thompson  v.  Leach,  1  Lord  Raym.  313. — [Note  90.] 


L.  3.  C.  5,  Sect.  326,  327.       upon  Condition.       [202.  b. 


Sect.  326. 

TN  the  same  manner  it  is  if  lands  he  given  in  taile,  or  let  for  terme  of 
life  or  *  of  yeares,  upon  condition  (sur  f  condition),  ^c. 

"  Upon  condition,  &c."     This  implyeth  the  severall  kinds  of 
conditions  in  deed  before  specified. 


Sect.  327. 

J)  UT  where  a  feoffment  is  made  of  certain  lands  reserving  a  certaine 
rent,  J  ^c.  upon  such  condition,  that  if  the  rent  be  behind,  that  it 
shall  be  lawfuU  for  the  feoffor  and  his  AetVes  (que  §  bien  lirroit  al  feoffor 
et  II  ses  heires)  to  enter,**  and  to  hold  the  land  untill  he  be  satisfied  or 
payed  the  rent  behind,  ^c.  in  this  case  if  the  rent  be  behind,  and  the 
f coffer  or  his  heires  enter,  the  feoffee  is  not  altogether  excluded  from  this 
(le  feoffee  n'est  pas  exclude  de  ceo  tout  \.  net),  but  the  feoffor  shall 
have  and  hold  the  land,  and  thereof  take  the  profits,  until  he  be  satisfied 
(tanque  \.\.  il  soit  satisfie)  of  the  rent  behind  ;  and  when  he  is  satisfied, 
then  may  the  f coffee  re-enter  (donque  poitle  feoffee)  |t  re-entrer)  into  the 
same  land,  and  hold  it  as  he  held  it  before  (et  ceo  tener  ||  ||  come  il  tenoit 
a  devant).  For  in  this  case  the  feoffor  shall  have  the  land  (le  feoffor 
avera  §§  la  terre)  but  in  manner  as  for  a  distresse,  until  he  be  satisfied 
tanque  *!*  il  soit  satisfie)  of  the  rent,  ^c  though  (coment  ft  que)  he 
take  the  profits  in  the  meane  time  XX  to  his  own  use,  ^c. 

"  A  ND  to  hold  the  land  until  he  he  satisfied  or  payed  the  rent  J^^^  l^^^{ ^^^'^^ 
■^behinde,  &c."  By  this  it  is  implyed,  that  if  such  a  feoffment  ggo.'  19  ii.  2"* 
be  made,  reserving  [&]  (for  example)  8  markes  rent  at  the  feast  Done  rent,  10. 
of  Easter,  with  such  a  condition  as  is  afore  said,  the  feoffor  at  the  Pi-  Com.  524 
feast  day  demands  the  rent,  the  feoffee  paieth  unto  him  6  markes  [.q^ enant,"  3.' ' 
parcell  of  the  rent,  the  feoffer  entreth  into  the  lands  and  taketh 
the  profits  towards  satisfaction.     Afterwards  the  feoffee  doth 

tender 

*  for  terme  added  in  L.  and  M.  and         Jf  re-entrer — entre  in  L.  and  M. 

Roh.  and  Roh. 

f  tiel  added  in  L.  and  M.  and  Roh.         \\  \\  come — coment  in  L.  and  M.  and 

X  &c.  not  in  L.  and  M.  Roh. 

§  il  added  in  L.  and  M.  §§  avera  la  tcrrc— ceo  aver   in  L. 

II  a  added  in  L.  and  M.  and  M.  and  Roh. 

**  into  the  land  held  of  them  in  L.         *!*  que  added  in  L.  and  M.  and 

and  M.  Roh. 

\.  de  added  in  L.  and  M.  and  Roh.         ft  ^^^  not  in  L.  and  M.  or  Roh. 

\.\.  que  added  in  L.  and  M.   and         %%  to  his  own  use  not  in  L.  and  M. 

Roh.  or  Koh. 

Vol.  il— 10 


202.  b.  203.  a. J        Of  Estates         L.  3.  C.  5.  Sect.  327. 

tender  the  two  markes  residue  of  the  rent  to  the  feoffor 
upon  the  land,  who  refusethit.     It  OO"  hath  been  ad-  fQCSl 
judged  that  the  feoffee  upon  the  refusal  may  enter  into  L    ^*    J 
the  land  (1) ;  for  when  the  feoffor  is  satisfied  either  by 
perception  of  the  profits  or  by  payment  or  tender  and  refusall, 
or  partly  by  the  one  and  partly  by  the  other,  the  foeffee  may  re- 
(Autrement  in      enter  into  the  land.     And  ihis  is  within  the  words  of  Littleton, 
casedeobhga-     ^j^.  (untilhe  he  satisfied.)  And  albeit  the  feoffor  had  accepted 
contract.     Doc.  P^'"*'  ^^  ^i^  rent,  yet  he  may  enter  for  the  condition  broken,  and 
Pla.  109. )  retain  the  land  untill  he  be  satisfied  of  the  whole.  All  which  is 

worthy  of  observation. 

"  For  in  this  case  the  feoffor  shall  have  the  land  hut  in  manner  as 
(Sid.  223.  262.     for  a  distresse,  -until  he  he  satisfied  of  the  rent,  &c."  By  this  it  ap- 
344.  Plow.  o24.    peareth  that  the  feoffor  by  his  re-entry  gaineth  no  estate  of  free- 
hold (2),  but  an  interest  by  the  agreement  of  the  parties  to  take 
the  profits  in  nature  of  a  distresse.     And  therefore  if  a  man 
maketh  a  lease  for  life  with  a  reservation  of  a  rent,  and  such  a  con- 
dition, if  he  enter  [upon]  the  condition  broken^  and  take  the 
profits  of  the  land  quosqne,  ka.  he  shall  not  have  an  action  of 
debt  for  the  rent  an  re,  fur  that  the  freehold  of  the  lessee  doth 
Tel  2  E  3   fo  7    continue,  and  therefore  the  booke  [r]  that  seemeth  to  the  contrary 
is  false  printed,  and  the  true  case  was  of  a  lease  for  yeares,  as  it 
appeareth  afterwards  in  the  same  page  of  the  leafe. 

But  herein  also  a  diversity  worthy  the  observation  is  implyed, 
viz.  If  a  man  make  a  lease  for  yeares,  reserving  a  rent  with  a  con- 
dition, that  if  the  rent  be  behind,  that  the  lessor  shall  re-enter  and 
take  the  profits  untill  therei.t  he  be  satisfied,  there  the  profits 
shall  be  accounted  as  parcell  of  the  satisfaction,  and  during  the 
SO  E.  3.  7.  'Cvm.^  that  he  so  taketh  the  profits  he  shall  not  have  an  action  of 

Vid.  Semblable.  debt  for  the  rent  for  the  satisfaction  whereof  he  taketh  the  profits, 
i^p-f/i  -^"^  ^^  ^^^  condition  be  that  he  shall  take  the  profits  untill  the 

31  Ass.  pi.  26.  feoffor  (A)  be  satisfied  or  paid  of  the  rent,  without  saying 
Vid  le  Statute  (thereof)  or  to  the  like  effect,  there  the  profits  shall  be  accounted 
de  Merton,  ca.  ^q  part  of  the  satisftiction  but  to  hasten  the  [lessor]  (B)  to  pay 
these  word"^^  '^^■>  ^^^  ^^  Littleton  here  saith,  that  untill  he  be  satisfied  he  shall 
quod  inde  p  er-  take  the  profits  in  the  mean  time  to  his  own  use  (3). 
cipere  possint  duplicem  valorem,  <tc.     Et.  c.  7,  without  this  word  (inde.)  See  ant.  82.  b.) 


(A)  The  tcord  feoffor,  seems  to  he  here  i nserted for  lessor.     See  Mr.  RiUo's  Intr.  p,  119, 

(B)  Instead  of,  lessor,  it  should  he,  lessee,  as  it  seemt.     See  Air.  Hiiso's  Ititr.  p.  119, 


Sect. 


(1)  But  there  must  be  a  previous  actual  demand,  in  the  same  manner  as 
where  the  condition  is  general.  Hob.  82.  133.  Hobart  was  of  opinion,  that 
the  feoffor,  to  entitle  himself  to  enter  bj'  way  of  penalty,  should  demand  the 
rent  not  only  on  the  day  when  it  became  due,  but  on  the  day  after.  Hob.  208. 
—[Note  91.] 

(2)  This  is  so,  though  the  condition  be,  that  the  feoffer,  his  heirs  and  as- 
signs, may  enter  ;  and  his  interest  goes  to  his  executor.  But  he  may  maintain 
an  ejectment.  1  Saund.  112.  1  Sid.  344,  345.  T.  Kaym.  135.  158.— [Note  92.] 

(3)  Care  must  be  taken,  with  respect  to  conditions,  or  powers  of  entry, 
to  distinguish  between  a  general  condition  that  the  lessor  shall  re-enter  ;  a 
special  condition  that  he  may  enter  and  hold  until  payment  or  satisfaction; 
and  a  power  of  entry,  limited  by  way  of  use.     I.  A  general  condition 

lessor 


L.  3.  C.  5.  Sect.  328.        upon  Condition.  [203.  a. 


Sect.  328. 


A  LSO,  divers  words  {amongst  others  [enter  |1  1|  auters])  there  he,  which 
by  vertue  of  themselves  make  estates  upon  condition;  one  is  the  word 
(sub  condic.)  fun  est  le  parol  §§  sub  conditionc):  as  if  A.  infeoffe  B.  of 
certaine  land,  to  have  and  to  hold  to  the  said  B.  and  his  heires,  upon 
condition  (sub  *  conditione),  that  the  said  B.  and  his  heires  do  pay  or 
cause  to  he  j)aid  to  the  aforesaid  A.  and  his  heires  yearely  such  a  rent, 
^c.  In  this  case  tvithout  any  more  saying  the  feoffee  Imth  an  estate 
upon  condition, 

HERE 

11  11  les  added  in  L.  and  M.  and  Rah.  *  ista  added  in  L.  and  31.  and 

§  §  ftnb   conditione — de  condicion  in       Roh. 
L.  and  M.  and  Roh. 


lesaor  shall  re-enter  is  the  subject  of  the  foregoing  Section.  II.  A  special  con- 
dition (hat  hr  may  enter,  is  the  subject  of  the  present  Section.  The  distinction 
when  the  profits  taken  by  the  lessor  after  entry  are,  and  when  they  are  not,  to 
be  in  satisfaction  of  the  rent,  is  not  admitted  in  equity,  for  the  courts  of  equity 
will  always  make  the  lessor  account  to  the  lessee  for  the  profits  of  the  estate, 
during  the  time  of  his  being  in  possession  of  it,  and  decree  him,  after  he  is 
satisfied  the  rent  in  arrear,  and  the  costs,  charges  and  expenses  attending  his 
entry  and  detention  of  the  lands,  to  give  up  the  possession  to  the  lessee,  and 
deliver  and  pay  him  the  surplus  of  the  profits  of  the  estate  and  the  money 
arising  thereby.  III.  A  2wioer  of  entry  limited  hy  loay  of  use.  This  takes  its 
effect  from  the  Statute  of  Uses ;  as,  if  A.  by  feoffment,  lease  and  release,  fine, 
or  common  recovery,  conveys  an  estate  to  C.  and  his  heirs,  to  the  use,  intent, 
and  purpose,  that  B.  may  receive  out  of  the  lands  so  conveyed  a  certain  annual 
sum ;  and  to  this  farther  use,  intent,  and  purpose,  that  if  such  annual  sum,  or 
any  part  of  it,  be  unpaid  by  a  certain  time,  it  shall  be  lawful  for  B.  and  his 
assigns  to  enter  upon,  and  hold  possession  of  the  land,  and  receive  the  rents 
and  profits  of  it,  until  the  arrears  are  satisfied :  here,  as  soon  as  the  rent  is  in 
arrear,  an  use,  which  is  served  out  of  the  original  seisin  of  the  feoffee,  releasee, 
conusee  or  recoveror,  springs  up  and  vests  in  the  person  to  whom  the  power  is 
given.  This  use  is  immediately  transferred  into  possession  by  the  statute.  He 
has  consequently  a  right  to  take  and  keep  that  possession  till  the  purpose  for 
which  it  is  executed  is  satisfied,  and  then  the  use  determines.  By  virtue  of 
this  estate  he  may  make  a  lease  for  years  to  try  his  title  in  ejectment,  cither, 
to  obtain  the  possession  of  the  lands,  if  it  be  withheld  from  him,  or,  to  restore 
it,  if  it  be  disturbed  or  divested;  and  if  he  assigns  the  annual  sum,  this  right 
of  entry,  and  perception  of  the  rents  and  profits  of  the  lands  charged  with  the 
payment  of  it,  passes  with  it  to  the  assignee.  But  a  distinction  must  be  made 
between  this  case  and  that  of  a  grant  of  a  rent  to  be  issuing  out  of  certain 
lands,  with  a  proviso,  declaration  or  covenant,  that  if  the  rent  be  in  arrear,  the 
grantee  may  enter,  &c.  Here  there  is  no  seisin  in  any  person,  out  of  which 
an  use  can  arise  to  the  grantee  on  non-payment  of  the  rent;  and  therefore 
possession  is  not  in  him  till  he  makes  an  actual  entry.  But  an  interest  vests 
in  him  when  the  rent  becomes  in  arrear,  and  he  may  reduce  it  into  possession 
by  ejectment.  See  Havergill  v.  Hare,  Cro.  Jac.  510.  2  Roll.  Rep.  12.  Poph. 
126.  147.  3  Bulstr.  250.  Jcmmot  v.  Cowley,  Sid.  223.  262.  344.  Raym. 
135.  158.     Saund.  112.— [Note  93.] 


203.  a.  203.  b.J         Of  Estates        L.  3.  C.  5.  Sect.  329. 

(D  er  138  b  )  T^  ERE  in  this  and  the  next  two  Sections  Litt/rton  doth  put 
Sub  conditione.  -^  four  examples  of  words  that  make  conditions  in  deed :  and 
Marie,  first  fill)  conditione.     This  is  the  most  expresse  and  proper  cou- 

27^ll'8^l'5  ditiou  in  deed,  and  therefore  our  author  beginneth  with  it. 

13  II.  4.     Enter   Cong.  57.     29  Ass.  7.     .33  Ass.  11.     40  Ass.  13.     Bracton,  ubi  supra. 
Fleta,  lib.  4.  ca.  9.     Brit.  cap.  36.  &,  ubi  supra. 

Vide  Sect  325.         "  Such  rent,  &c."  S^^  This  ((fr.)  iraplieth  any  other  r203.~j 
rent  or  sum  in  grosse,  or  any  colhxterall  condition  what-  L     ^-     J 
soever,  either  to  be  performed  by  the  feoffee  (whereof 
our  author  here  putteth  his  case,)  or  by  the  feoffor,  and  extend- 
eth  to  all  kinds  of  conditions  in  deed,  before  specified. 


Sect.  329. 


A  LSO,  if  the  words  were  sucJi  (si  les  t  parols  fueront  tielx),  Provided 
ahvaies,  (Proviso  semper),  that  the  aforesaid  B.  do  pay  or  cause  to  be 
paid  to  the  aforesaid  A.  such  a  rent,  ^c.  or  these,  So  that  (Ita  quod)  the 
said  B.  do  pay  or  cause  to  he  paid  to  the  said  A.  such  a  rent,  ^c.  in  these 
cases  zvithout  more  saying,  the  feoffee  hath  hut  an  estate  upon  co7idition 
(le  feoffee  H  n'ad  estate  forsque  sur  condition);  so  as  if  he  doth  not  per- 
forme  the  condition,  the  feoffor  and  his  heires  may  enter,  ^c. 

■r.     .      ,r. ,  "  T>ROVII)ED  ahvaies,  (Proviso  semper),  that  tie  aforesaid 

Proviso.  Vid.  JL     T,      7  p     t> 

Sect.  220.  Dier.  !>•  "'^  P^ij,  Ac.  ^ 

28  H.  8.  fol.  13.        Our  author  putteth  his  case  where  a  proviso  commeth  alone. 

27  H.  8.  fol.  14,  ^jj(j  gQ  jt  jg  if  a  man  by  indenture  letteth  lands  for  yeares,  pro- 

Eiitre  Con".  57.  vided  alwaies,  and  it  is  covenanted  and  agreed  between  the  said 

Seignior  Crom-  parties,  that  the  lessee  should  not  alien,  and  it  was  adjudged 

well's  case,  ^  tiiat  this  was  a  condition  by  force  of  i\\Q  proviso,  and  a  covenant 

aUarg"e'.  35  n.l  ^1  ^orce  of  the  other  words  (1). 

tit.  Condition.    Br.  lib.  8.  89,  Frances's  case.     (2  Rep.  70.  b.) 

This 
f  parols — condicions  in  L.  and  M.         \\  n'ad — ad  in  L.  and  M. 
and  Roh. 

(1)  Ace,  1  Roll.  Abr.  410.  L.  30.  though  it  stands  indifferent  whether  it  be 
the  speaking  of  the  grantor  or  grantee ;  for  in  that  case  it  shall  be  referred  to 
the  grantor,  as  no  condition  can  be  reserved  or  made,  but  on  the  part  of  the 
donor,  lessor,  or  feoffor.  Dyer,  6.  And  it  is  immaterial  in  what  part  of  the 
deed  the  word  proviso  stands,  and  though  there  be  covenants  before  or  after. 
2  Rep.  70,  71.  1  Roll.  Abr.  407.  Dyer,  311.  But  when  it  docs  not  intro- 
duce a  new  clause,  and  only  serves  to  qualify  or  restrain  the  generality  of  a 
former  clause,  it  is  not  a  condition.     Moore,  307.  707. 

We  should  carefully  distinguish  between,  I.  A  condition,  II.  A  remainder, 
III.  And  a  conditional  limitation.  IV.  It  may  also  be  proper  to  notice,  in 
this  place,  the  effect  of  a  condition,  defeating  the  estate  of  a  tenant  to  the  precipe 
in  a  r e cover ij. 

I.  We  have  seen  that  a  condition  defeats  the  whole  estate;  that  none  but  the 
donor  or  the  heir  can  take  advantage  of,  or  enter  for,  the  breach  of  it;  and 
that,  when  he  enters,  he  is  in  as  of  his  old  estate.  Such  is  the  case  put  by 
Littleton  of  a  feoffment  in  fee,  reserving  a  yearly  rent,  with  a  condition  that, 
if  the  rent  be  behind,  it  shall  be  lawful  for  the  feoffor  and  his  heirs  to  enter. 

II.  A  remainder  is  defined  by  lord  Coke,  ant.  143.  to  be  "a  remnant  of  an 

"  estate 


L.  3.  C.  5.  Sect.  329.         upon  Condition.  [203.  b. 

This  word  proviso  shall  be  also  taken  as  a  limitation  or  quali- 
fication, as  hereafter  in  his  proper  place  shall  be  said.  And 
sometime  it  shall  amount  to  a  covenant.  All  which  do  appear 
bj  the  authorities  in  the  margent  *.  [*]  27  H.  8. 15, 

For  *<=. 

"  estate  in  lands  or  tenements,  expectant  on  a  particular  estate,  created 
"  together  with  the  same,  at  the  same  time;"  so  that  it  waits  for,  and  only 
takes  effect  in  possession  on,  the  natural  expiration  or  determination  of  the 
first  estate ;  as,  if  a  man  limits  an  estate  to  A.  for  life,  and  after  his  decease  to 
B.  in  fee,  this  is  a  remainder :  it  does  not  defeat,  but  it  expects  the  natural  end 
and  expiration  of  the  first  estate  limited  to  A.  for  his  life;  and,  when  that  event 
happens,  not  the  heir,  but  a  stranger  has  the  advantage  of  it. 

III.  A  conditiunal  limitation  partakes  of  the  nature  both  of  a  condition  and 
a  remainder.  It  is  to  be  observed,  that  at  the  common  law,  whenever  either 
the  whole  fee,  or  a  particular  estate,  as  an  estate  for  life,  or  in  tail,  was  first 
limited,  no  condition  or  other  quality  could  be  annexed  to  this  prior  estate, 
which  would  have  the  double  efiect  of  defeating  the  estate,  and  passing  the 
land  to  a  stranger:  for,  as  a  remainder,  it  was  void,  being  an  abridgment  or 
defeasance  of  the  estate  first  limited ;  and,  as  a  condition,  it  was  void,  as  no 
one  but  the  donor  or  the  heirs  could  take  advantage  of  a  condition  broken, 
and  the  entry  of  the  donor  or  his  heirs  unavoidably  defeated  the  livery,  upon 
whicli  the  remainder  depended.  On  these  principles,  it  was  impossible,  by 
the  old  law,  to  limit  by  deed,  if  not  by  will,  an  estate  to  a  stranger,  upon  any 
event  which  went  to  abridge  or  determine  an  estate  previously  limited.  But 
the  expediency  and  utility  of  such  limitations,  assisted  by  the  revolution 
effected  in  our  law  by  the  statute  of  uses,  at  length  forced  them  into  use,  in 
spite  of  the  maxim  of  law,  that  a  stranger  cannot  take  advantage  of  a  con- 
dition. These  limitations  are  now  become  frequent,  and  their  mixed  nature 
has  given  them  the  appellation  of  conditional  limitations  :  they  so  far  partake 
of  the  nature  of  conditions,  as  they  abridge  or  defeat  the  estates  previously 
limited ;  and  they  are  so  far  limitations,  as,  upon  the  contingency  taking  place, 
the  estate  passes  to  a  stranger.  Such  is  the  limitation  to  A.  for  life,  in  tail, 
or  in  fee,  provided  that  when  C.  returns  from  Rome,  it  shall  from  thenceforth 
remain  to  the  use  of  B.  in  fee.  See  Mr.  Fearne's  Essay  on  Contingent  Pic- 
mainders,  6th  ed.  p.  9.  Of  late,  however,  it  has  been  frequently  argued,  that 
the  difference  between  a  remainder,  and  what  is  generally  understood  by  a  con- 
ditional limitation,  is  merely  verbal.  See  10  Mod.  Rep.  423.  Mr.  ])ouglas's 
note  to  page  727,  of  his  Reports,  and  Mr.  Fearue's  reply  in  the  last  edition  of 
his  Essay,  6th  ed.  p.  15. 

IV.  In  addition  to  what  has  been  mentioned  in  the  concluding  note  on 
202.  b.  respecting  the  principle,  that  when  a  feoffor  enters  for  a  condition 
broken,  he  is  in  as  of  his  former  estate, — it  maybe  observed,  that,  when  a  tenant 
for  life  joins  with  a  remainder-man  in  sufi'ering  a  common  recovery,  it  is  some- 
times practised,  as  a  precaution  against  letting  in  the  incumbrances  of  the 
remainder-man,  to  annex  a  condition  to  the  estate  of  the  bargainee  or  releasee, 
%cho  is  made  tenant  to  the  pracipe,  on  the  nonperformance  of  tchich  his  estate  is 
to  become  void.  For,  if  A.  be  tenant  for  life,  with  remainder  in  tail  to  B.  and 
B.  executes  leases,  confesses  judgments,  or  otherwise  encumbers  his  estates; 
and  afterwards  A.  and  B.  join  in  suffering  a  common  recovery,  all  the  encum- 
brances of  B.  are  immediately  let  in  upon  the  fee  gained  by  the  recovery ;  and 
that  fee,  and  every  estate  derived  out  of  it,  are  subject  to  them.  To  avoid 
which,  A  the  tenant  for  life,  by  lease  and  release,  or  by  bargain  and  sale  en- 
rolled, conveys  the  estate  to  the  intended  tenant  to  the  praecipe,  to  hold  to 
him  and  his  assigns  during  the  joint  lives  of  him  and  the  grantor  or  bargainor; 
with  a  declaration,  that  such  grant  and  release,  or  bargain  and  sale  is  made, 
to  enable  the  grantee  or  bargainee  to  be  tenant  of  the  freehold  in  the  proposed 

recovery ; 


203.  b.  I  Of  Estates  L.  3.  C.  5.  Sect.  329. 

Ita  quod.  J^or  the  (etc.)  in  this  Section  explanation  is  made  in  the  Section 

fi!'i'.'BLt,    »«'  before. 

ubi  supra.     Britton,  ubi  supra. 

(Dyer,  13.  b.)  "  Or  these,  So  that  (Ita  quod)."     This  is  the  third  condition 

in  deed  whereof  our  author  uiaketh  mention. 

Sect. 

recovery ;  and  a  declaration  of  the  uses,  to  which  it  is  intended  that  the  re- 
covery shall  enure.  Then  a  proviso  is  inserted,  that,  if  the  bargainee  or 
releasee  do  not,  within  sis  months,  pay  the  tenant  for  life  100,000/.  or  some 
other  very  large  sum  of  money,  the  bargain  and  sale,  or  grant  and  release, 
shall  be  void;  and  that  it  shall  be  lawful  for  the  bargainor  or  grantor  to  enter, 
as  in  his  former  estate.  The  money  is  not  paid  at  the  day  appointed;  and 
thereupon  the  bargain  and  sale,  or  grant  and  release,  is  void,  and  the  bargainor 
or  grantor  becomes  seised  of  his  ancient  life  estate.  But,  though  the  bargain 
and  sale  becomes  void,  yet,  as,  at  the  time  of  suing  the  original  writ  and  the 
prascipe,  the  bargainee  or  releasee  was  tenant  of  the  freehold,  the  subsequent 
cesser  or  detei'mination  of  his  estate  does  not  impeach  the  recovery.  For, 
if  the  person  against  whom  the  prisecipe  is  brought,  be,  at  the  time  when  the 
praecipe  is  sued,  or  at  any  time  before  judgment,  actual  tenant  of  the  freehold, 
it  is  immaterial  what  becomes  of  it  afterwards.  This  doctrine  has  been  carried 
so  far,  that  where  a  tenant  to  the  freehold  was  made  by  a  fine,  and  the  fine 
has  been  reversed,  yet  the  recovery  was  held  good.  (See  Lloyd  v.  Evelyn, 
1  Salk.  568;  and  see  1  Shower's  Eep.  347.  Hob.  262.  Noy,  126.  1  Mod.  218.) 
The  recovery  therefore,  in  this  case,  is  good;  the  freehold  upon  which  it  was 
suflfered  is  determined  ;  and  the  bargainor  or  grantor  comes  in  of  his  original 
estate,  and  of  course  avoids  all  the  leases,  judgments,  and  other  encumbrances 
of  the  tenant  in  tail.  The  reason  why  the  conveyance  is  made  to  the  bargainee 
or  releasee  during  the  joint  lives  of  him  and  the  grantor  or  bargainor,  is,  to 
preserve,  as  far  as  the  case  admits,  his  powers,  by  leaving  the  reversion  in  him. 
— For,  supposing  A.  to  be  tenant  for  life,  with  the  usual  powers  of  leasing, 
jointuring,  and  charging;  remainder  to  trustees  to  preserve  contingent  re- 
mainders; remainder  to  A.'s  first  and  other  sons  in  tail  male;  remainder  to  his 
daughters  as  tenants  in  common  in  tail,  with  cross  remainders  in  tail  between 
them,  if  more  than  one,  with  remainders  over;  A.  and  his  daughters  may  suffer 
a  common  recovery;  and  it  will  be  good  against  A.  and  his  daughters,  and 
their  issues  in  tail,  and  the  remainders  over.  But  the  estates  tail  of  the  sons, 
being  prior  to  the  estates  of  the  daughters,  and  being  supported  by  the  estate 
of  the  trustees  for  preserving  contingent  remainders,  are  not,  whether  vested 
or  contingent,  at  the  time  of  the  recovery,  affected  by  it. — But  if  A.  granted 
his  whole  life  estate  to  the  tenant  to  the  pr^^cipe,  it  might  be  apprehended,  that 
the  powers  relating  to  his  estate,  whether  appendant  or  in  gross,  would  be 
extinguished  thereby,  (See  Edwards  v.  Slater,  Hardres,  410.  and  King  v. 
Melling,  1  Yent.  225.)  and  a  limitation  or  grant  of  new  powers  would  be  void 
against  the  sons  and  the  heirs  male  of  their  bodies.  To  prevent  this  question 
being  made,  A.  the  tenant  for  life,  conveys  an  estate  to  the  intended  tenant  to 
the  praecipe,  only  during  the  joint  lives  of  the  tenant  and  grantor  or  bargainor. 
This  continues  the  old  reversion  in  the  grantor  or  bargainor,  and  preserves  the 
powers  relating  to  his  original  estate,  to  which  he  is  restored  on  the  breach  of 
the  condition.  It  is  customary  in  these  cases  to  declare,  that  the  recovery 
shall  enure  in  the  first  place,  for  corroborating,  strengthening,  and  confirming 
the  estate  for  life  of  the  grantor  or  bargainor,  and  all  other  estates  precedent 
to  the  estate  in  tail  meant  to  be  destroyed,  and  all  powers  and  privileges 
annexed  to  such  estate  for  life,  and  other  precedent  estates. — The  mode  of 
suffering  recoveries  on  a  conditional  estate  of  freehold  was  in  use  s6  early  as 
the  end  of  the  last  century. — [Note  94.] 


L.  3.  C.  5.  Sect.  330.  upon  Condition.      [203.  b.  204.  a. 


Sect.  330. 

A  LSO,  there  be  other  ivords  in  a  deede  which  cause  the  tenements  to 
he  conditionall.  As  if  upon  such  feoffment  a  rent  he  reserved  to 
the  feoffor,  ^c.  and  afterward  this  ivord  is  put  into  the  deed  (et  puis 
soit  raitte  en  le  fait  *  cest  parol),  That  if  it  happen  (Quod  si  contingat) 
the  aforesaid  rent  to  he  behind  in  part  or  in  all,  f  t^tat  then  it  shall  be 
lawful  for  the  feoffor  and  his  heires  to  enter,  ^c.  this  is  a  deed  upon 
condition. 

"  rp  HAT  if  it  happen  (Quod  si  contingat),  &c."  (Ante  146.  b.) 

^      Tliis  is  the  fourth  condition  in  deed  set  down  by  our  6  E.  2.  Entrie 

,  Cong.  65. 

author.  8  E.2.  Ass.  320. 

adjudged.     Quod  si  contingat.  Pasch.  37  Eliz.     Rot.  254.  inter.  Sayer  et  Hares  in 
Com.  Banco. 

rS04.1      "  To  enter,  6cc."  Hereby  it  is  evident,  that  J5@^some 
L     a.     J  words  of  themselves  do  make  a  condition,  and  some 
other  (whereof  our  author  here  and  in  the  next  Sec- 
tion *  putteth  an  example)  do  not  of  themselves  make  a  condition  »  Vid.  Sec.  331. 
without  a  conclusion  and  clause  of  re-entrie:   and  manie  times  3  h.  6.  7.  Si 
(si)  makes  a  condition,  and  sometimes  a  limitation,  as  hereafter  Fleta,  li.  4.  ca.  9. 

1     11  1  -J  •      ii  •     rn       J.  Bracton,  lib.  4. 

shall  be  said  in  this  Chapter.  ^^^  213.  b. 

(oRep.  9.) 

Inesse  potest  donationi  modus,  conditio,  sive  causa.     *  Scito  *4Mar_. 
quod  (u<)  modus  est  (si)  conditio  (quia)  causa.  ^Jye^r,    ^  ■    ■ 

Conditio  is  explained  before,     llodus  is  at  this  day  properly  Bracton,  ubi 
taken  for  a   modification,   limitation,  or  qualification,  for  the  supra. 
which  also  the  law  hath  appointed  apt  words;  and  because  Lit- 
tleton speaketh  of  this  also  in  this  end  of  the  Chapter,  I  will 
reserve  this  matter  to   his  proper  place,  where  the  reader  shall 
perceive  excellent  matter  of  learning  touching  this  point. 

Causa,  the  cause  of  consideration  of  the  grant.     And  herein 
there  is  a  diversitie  bctwcene  a  gift  of  lands,  and  a  gift  of  an 
annuitie  or  such  like.     For  example,  if  a  man  grant  an  annuitie 
2)ro  lend  a^rd  terrse,  in  this  case  this  word  pro  sheweth  the  cause  Pro. 
of  the  grant,  and  therefore  amounteth  to  a  condition;  for  if  the  ^^  E.  3-^34.^ 
acre  of  land  be  evicted  by  an  elder  title,  the  annuitie  shall  cease,   jq  nl^^  42. 
for  cessantc  causa  ccssut  cjfectus.  Plowd.  141.  a. 

And  so  if  an  annuitie  be  grauted  jwo  dccimis,  &c.  if  the  gran-  ^^^^gs'  b'  ^* 
tee  (A)  be  unjustly  disturbed  of  the  tithes  the  annuitie  ccaseth.  ^^^^  \^l  ^ 
And  so  it  is  if  an  annuitie  be  granted  pro  consilio,  and  the  9  Rep.  50.  a. 
grantee  refuse  to  give  counsell,  the  annuitie  ceaseth.     So  if  an  9 ''^'"^^'j^q  ^'^ 

32  E.  .3.  Annu.  30.  14  E.  4.  4.  15  E.  4.  2.  b.  8  H.  6.  23.  5  E.  2.  tit.  Ann.  44. 
41  E.  3.  19.  32  E.  1.  Avowrie,  242.  21  E.  4.  49.  22  E.  4.  28.  35  H.  6.  2. 
10  E.  3.  44.     5  E.  2.     9  E.  4.  20.     15  E.  4.  3. 

annuitie 


*  cest  parol  not  in  L.  and  M.  or  in        f  &c.  added  in  L.  and  M.  and   in 
Roh.  Roh. 

(A)  Instead  of  grantee,  it  sliould  le  grantor,  at  it  seems.    See  Mr.  Eitso's  Intro,  p.  119. 


204.  a.J 


Of  Estates      L.  3.  C.  5.  Sect.  330. 


annuitie  be  granted  quod  prsestaret  consilruw,  this  makes  the 
grant  conditionalL 

But  if  A.  p/'o  consilio  impenso,  &c.  make  a  feoifement,  or  a 
lease  for  life,  of  an  acre,  or  pro  una  acrd  terrse,  drc.  albeit  he 
denieth  counscU,  or  that  the  acre  be  evicted,  yet  A.  shall  not 
re-enter,  for  in  this  case  there  ought  to  be  legall  words  of  con- 
dition or  qualification,  for  the  cause  or  consideration  shall  not 
avoyd  the  state  of  the  feoffee;  and  the  reason  of  this  diversitie 
is,  for  that  the  state  of  the  laud  is  executed,  and  the  annuitie 
exeeutorie. 

And  yet  sometime  in  case  of  lands  or  tenements  (cawso)  shall 
make  a  condition.  As  if  a  woman  give  lands  to  a  man  and  his 
heires,  causa  matrimonii  praelocuti,  in  this  case  if  she  either 
marrie  the  man,  or  the  man  refuse  to  marrie  her,  she  shall  have 
the  land  again  to  her  and  to  her  heires.  [e]  But  of  the  other 
side,  if  a  man  give  land  to  a  woman  and  to  her  heires,  causa 
matrimonii prselocuti,  though  he  (A)  marrie  her,  or  the  woman 
refuse,  he  shall  not  have  the  lands  again,  for  it  stands  not  with 
the  modestie  of  women  in  this  kind,  to  aske  advice  of  learned 
counsell,  as  the  man  may  and  ought;  *  and  the  rather,  for  that 
in  the  case  of  the  woman  she  may  averre  the  cause,  (for  the 
reason  aforesaid)  although  it  be  not  contained  in  the  deed,  yea 
though  the  feoffement  be  made  without  deed. 

If  a  man  maketh  a  feoffement  in  fee,  ad  faciendum,  or  faci- 
endo,  or  ea  intentione,  or  ad  ejf'ectum,  or  ad  propositum,  that 
the  feoffee  shall  do  or  not  do  such  an  act,  none  of  these  words 

31  H.  8.  tit.  Con-  make  the  state  in  the  land  couditionall,  for  in  judgment  of  law 
dition,  19.  Br.      ^|^gy  ^j.g  -^q  words  of  condition;  and  so  it  was  resolved,  Sil.  18. 

Uiiz.  in  Com.  Banco,  in  the  case  of  a  common  person;  but  in 
the  case  of  the  king  the  said  or  the  like  words  do  create  a  con- 
dition, and  so  it  is  in  the  case  of  a  will  of  a  common  person, 
which  case  I  myselfe  heard  and  observed. 

32  E.  3.     Brev.  291.     (1  Roll.  Abr.  407,  408,  409,  410.     Moore,  57.     2  Leo.  33. 
3  Rep.  64.  a.     10  Kep.  42.  a.) 


Fleta  lib.  5. 
cap.  34. 
34  Ass.  1. 
40  Ass.  13. 

[e]  5  E.  2.  Cui 
in  vita,  34.  tit. 
Condition,  Br. 
5  H.  4.  1. 


*  12  E.  1.  1. 

Feoffements 

6  Faits,  114. 
F.  N.  B.  205.  L 
Vide  Sect.  365. 
Ad  faciend'  ea 
intentione,  ic. 
Dyer,  138. 

7  H.  4.  22 


PI.  Com.  142. 
38  H.  6.  33. 
36,  37. 

Doct.  &  Stud, 
lib.  2.  cap.  34. 
27  H.  8.  18.  a. 


But  for  the  avoyding  of  a  lease  for  ycares,  such  precise  words 
of  condition  are  not  so  strictly  required  as  in  case  of  freehold 
and  inheritance  [/].  For  if  a  man  by  deed  make  a  lease  of  a 
manor  for  yeares,  in  which  there  is  a  clause  (and  the  said  lessee 
shall  continually  dwell  upon  the  capitall  messuage  of  the  said 
manor,  upon  paine  of  forfeiture  of  the  said  terme)  these  words 
amount  to  a  condition. 

And  so  it  is  if  such  a  clause  be  in  such  a  lease.  Quod  non 
licehit,  to  the  lessee,  dare,  venderc,  vel  concedere  statum,  et  suh 
pxjena  furisfacturse,  this  amounts  to  make  the  lease  for  yeares 
defeasible  and  so  it  was  adjudged  in  the  court  of  common 
[7] Hill.  40  Eliz.  pleas  [(/]  in  queen  Elizabeth's  time;  and  the  reason  of  the  court 
Rot.  1610.  -was,  that  a  lease  for  yeares  was  but  a  contract,  which  may  begin 

'and  A^eT"'         ^^  ^0^*^'  ^°^  ^^  ^O'"^  ^^3'  ^^  dissolved. 
Vid.  PL  Com.  142.  Br.  and  Bestone's  case. 


r/l  7  E.  6. 
Dier,  79. 
28  H.  8. 
Dier,  27.  a. 
Subpoena  foris- 
facturse. 

Quod  non  lice- 
bit.    3  E.  6. 
Dyer,  65,  66. 
4  Mar.  138. 


(A)  Here,  it  teems,  the  text  should  he  read  as  if  the  \cordx,  though  he  do  not  marrie  her, 
had  been  wed  bi/  lord  Coke. 


Sect. 


L.  3.  C.  5.  Sect.  331.    upon  condition.     [204.  b.  205.  a. 


[^b.^*]  Ji@-Sect.  331. 

J^TJT  there  is  a  diversitie  between  this  ivords  si  contingat,  &c.  and  the 
words  next  aforesaid^  ^c.  For  these  words,  si  contingat,  &c.  are 
nought  ivorth  to  such  a  condition,  unless  it  hath  these  words  following, 
That  it  shall  be  lawful  for  the  feoffor  and  hisheires  to  enter,  ^c.  But  in 
the  cases  aforesaid,  it  is  not  necessarie  by  the  law  to  put  such  a  clause, 
scilicet,  that  the  feoffor  and  his  heires  may  enter,  ,j-c.  because  they  way  do 
this  by  force  of  the  words  aforesaid,  for  that  they  containe  in  themselves  a 
condition,  (pur  ceo  que  ils  impreignont  *  a  eux  mesmes  en  lej  un  con- 
dition), scilicet,  that  the  feoffor  and  his  heires  may  enter,  ^"c.  Yet  it  is 
commonly  used  in  all  such  cases  aforesaid  to  p)ut  the  clauses  in  the  deeds 
(de  mitter  f  les  clauses  en  les  faits),  scilicet  if  the  rent  be  behind,  tfc. 
that  it  shall  be  lawful  to  the  feoffor  and  his  heires  to  enter,  ^-c.  And  this 
is  well  done,  for  this  intent,  to  declare  and  expresse  to  the  common  people 
who  are  not  learned  in  tlie  laio,  of  the  manner  and  condition  of  thefeoffe- 
ment  (pur  declarer  et  expresser  a  les  leys  gents,  que  ne  sont  apprises  | 
en  la  ley,  ||  de  le  manner  et  le  condition  de  le  feoffment,)  cfc.  As  if  a 
man  seised  of  land  letteth  the  same  land  (sicome  home  seisie  de  terre§ 
lessa  mesme  la  terre)  to  another  by  deed  indented  for  term  of  yeares, 
rendering  to  him  a  certaine  rent,  it  is  used  to  be  put  into  the  deed,  that  if 
the  retit  be  behind  at  the  day  of  payment,  or  by  the  space  of  a  weeke  or  a 
month,  ^c.  that  then  it  shall  be  lauful  to  the  lessor  to  distreine,  ^c.  **  yet 
the  lessor  may  distreyne  of  common  right  for  the  rent  behind,  ^c.  though 
such  words  were  7iot  put  into  the  deed,  ^c. 

[nf>.^  -t    (fc!?'  "  It  is  not  necessarie  hy  the  law  to  put  such  clause, 
I  &c."      Quce   duhitationis  causa   tollenda  inseruntur, 
■^  comniiinem  legem  non  Icedunt.     Et  expressio  torum 
quce  tacitt  insunt,  nihil  operatur. 

"  Or  a  month,  &c."  Here  albeit  the  clause  of  distress  be 
added,  that  if  the  rent  be  behind  by  the  space  of  a  week  or  a 
mouth,  that  the  lessor  may  distraine,  yet  he  may  distraine 
within  the  week  or  month,  because  a  distresse  is  incident 
of  common  right  to  every  rent  service.  And  the  words  be  in 
the  affirmative,  and  therefore  caunot  restraine  that  which  is 
incident  of  common  right. 

The  other  (<?■''.)  in  this  B action  upon  that  which  liath  been 
said  are  evident. 

Sect. 

*  a — en  L.  and  M.  and  Boh.  |j   de   la  manner — le  matere   in    L. 

■j-  les —  tiels  i)i  L.  and  M.    and  and   M.    and  Roh. 

Boh.  §  come  de  franktcnement  added  in 

I  en  la — de   in   L.  M.   de  la  in  L.  and  M.  and  lioh. 

Roh.  **  And  added  in  L.  and  M.  and  Roh. 


205,a-]  Of  Estates  L.  3.  C.  5.  Sect.  332. 


Sect.  332. 


TTEM^  if  a  feoffment  he  made  upon  such  condition  (si  *  feoffment  soit 

fait"}"  sur  tiel   condition),  that  if  the  feoffor  pay  to  the  feoffee  at  a 

certaine  day,  ^cAO  pounds  of  money,  that  then  the  feoffor  may  re-enter,  ^c. 

in  this  case  the  feoffee  is  called  tenant  in  morgage,  which  is  as  much  to 

say  in  French  as  mortgage,  and  in  Latine  mortuum  vadium (1).  Audit 

seemeth 

*  aseun  added  in  Roh,  hut  not  in  L.  fa  ascun  home  added  in  Roh.  hut 
and  M.  not  in  L.  and  M. 

(1)  Few  parts  of  the  law  lead  to  the  discussion  of  more  extensive  or  useful 
learning  than  the  law  of  mortgages.  The  nature  of  these  notes  neither 
requires  nor  admits  of  more  than  some  few  general  observations : — 1st,  Upon 
the  origin  of  mortgages : — '2dly,  On  what  constitutes  a  mortgage  : — 3dly,  On 
the  different  estates  of  the  mortgagor  and  mortgagee; — 4thly,  On  the  nature 
of  an  equity  of  redemption  : — and  5thly,  On  general  devises  by  mortgagees 
in  fee  of  their  real  estates. 

1st.  As  to  the  origin  of  mortgages', — from  what  is  said  of  them  in  this 
Chapter,  it  appears  that  they  were  introduced  less  upon  the  model  of  the 
Roman  pignus,  or  hijpotheca,  than  upon  the  eommoa-law  doctrine  of  condi- 
tions.— This  circumstance  has  had  a  very  important  influence  on  the  English 
law  respecting  conveyances  by  mortgage.  In  the  civil  law,  when  a  mortgage 
is  executed,  the  debt  intended  to  be  secured  by  it,  is  considered  to  be 
the  principal,  and  the  securities  are  considered  as  adjuncts,  depending,  for 
their  existence,  on  the  existence  of  the  debt.  The  consequence  is,  that,  when 
the  debt  is  discharged,  the  securities,  and  all  the  estates,  interests,  liens,  and 
charges  created  by  them,  are  extinguished;  or,  to  use  the  language  of  the 
civil  law,  are  confounded;  and,  from  that  time,  have  no  legal  existence.  In 
this  light,  speaking  generally,  when  the  rights  of  third  persons  do  not  inter- 
fere, the  debt  and  security  are  viewed  by  courts  of  equity.  But,  in  courts  of 
law,  the  land  alone  is  considered,  and  the  mortgagor  is  treated  as  a  grantor, 
and  the  mortgagee,  as  a  grantee  of  an  estate  on  condition.  Immediately,  on 
the  execution  of  the  mortgage,  the  land  vests  in  the  mortgagee. — If  the  money 
is  paid  on  the  very  day  appointed  for  the  payment  of  it,  the  condition  is  said 
to  be  performed,  and  the  mortgagor,  as  in  any  other  case,  where  the  grantee 
of  land  on  condition  performs  the  condition,  may  enter  on  the  land  and  hold 
it,  as  of  his  former  estate.  If  the  money  be  not  paid  at  the  time,  then,  at  law, 
the  land  is  discharged  of  the  condition;  it  becomes  absolutely  vested  in  the 
mortgagee ;  the  mortgagor  has  no  legal  right  to  re-possess  himself  of  it  by 
payment  of  the  money;  and  the  estates,  for  all  legal  purposes,  remains  in  the 
mortgagee,  and  can  only  be  re-vested  in  a  mortgagor  by  a  re-conveyance 
from  the  mortgagee. — But,  in  the  view  of  a  court  of  equity,  the  land,  imme- 
diately on  the  payment  of  the  mortgage-debt,  becomes  the  absolute  property 
of  the  mortgagor;  and  a  court  of  equity  will  decree  the  mortgagee  to  re-convey 
it  to  him,  and  account  to  him  for  the  intermediate  profits. — In  a  case,  on  which 
the  present  annotutor  was  consulted,  a  mortgagor  in  fee  died  without  an  heir, 
and  the  intestate  as  to  his  real  estate;  a  commission  of  escheat  was  issued  and  an 
inquisition  held.  The  three  commissioners,  who  were  gentlemen  of  the  highest 
consideration  in  the  profession,  were  of  opinion  that  the  crown  was  not  entitled 
to  the  equity  of  redemption.  The  jury  found,  and  the  sheriff  returned  accord- 
ingly; and  Mr.  Perceval,  the  attorney-general,  who  was  fully  apprized  of  the 
circumstances  of  the  case,  declined  traversing  the  inquisition. 

2dly, 


L.  3.  C.  5.  Sect.  332.      upon  Condition.  [205.  a. 

seemeih  that  the  cause  why  it  is  called  mortgage  is,  for  that  it  is  doubtful 

whether 

2dly.  As  to  what  constitutes  a  mortgage; — qo  particular  words  or  form  of 
conveyance  are  necessary  for  this  purpose.  It  may  be  laid  down  as  a  general 
rule,  and  subject  to  very  few  exceptions,  that,  wherever  a  conveyance  or  assign- 
ment of  an  estate  is  originally  intended  as  a  security  for  money,  whether  this 
intention  appears  from  the  deed  itself,  or  by  any  other  instrument,  it  is  always 
considered  in  equity  as  a  mortgage,  and  redeemable ;  even  though  there  is  an 
express  agreement  of  the  parties,  that  it  shall  not  be  redeemable,  or  that  the 
right  of  redemption  shall  be  confined  to  a  particular  time,  or  to  a  particular  des- 
cription of  persons.  See  Newcomb  v.  Bonham,  1  Vern.  7.  214.  2  Ca.  in  Chan. 
58.  159.  Howard  v.  Harris,  1  Vern.  33.  190.  2  Ca.  in  Chan.  147.  Talbot  v. 
Braddyl,  1  Vern.  183.  394.  Barrel  v.  Sabine,  1  Vern.  268.  Manlove  v.  Ball  & 
Bruton,  2  Vern.  84.  Jennings  y.  Ward,  ibid.  520.  Price  v.  Perrie,2  Freeman,  258. 
Francklyn  v.  Fern,  Barnard.  Cha.  30.  Clench  i;.Witherly,  Gas.  temp.  Finch,  376. 
Cooke  V.  Cooke,  2  Atk.  67.  Mellor  v.  Lees,  2  Atk.  494.  Cotterell  v.  Purchase, 
Cas.  temp.  Talbot,  61.  Endsworth  v.  Griffiths,  1  Bro.  Par  Ca.  149.  Floyer  v. 
Lavington,  1  P.  W.  268.  In  many  of  these  cases  the  courts  have  found  it 
necessary,  not  only  to  apply  their  general  principles,  but  to  determine  the  fact, 
whether  the  conveyance  was  intended  as  an  absolute  sale  or  as  a  security  for 
the  money.  If  the  money  paid  by  the  grantee  was  not  a  fair  price  for  the  ab- 
solute purchase  of  the  estate  conveyed  to  him  ;  if  he  was  not  let  into  the  im- 
mediate possession  of  the  estate ;  if,  instead  of  receiving  the  rents  for  his  own 
benefit,  he  accounted  for  them  to  the  grantor,  and  only  retained  the  amount  of 
the  interest;  or  if  the  expense  of  preparing  the  deed  of  conveyance  was  borne 
by  the  grantor;  each  of  these  circumstances  has  been  considered  by  the  courts 
as  tending  to  prove  that  the  conveyance  was  intended  to  be  merely  pignoriti- 
tious. — It  seems,  however,  to  be  settled,  1st,  that  a  ho7id  fide  purchaser  of  an 
estate  or  interest  will  not  be  considered  as  a  mortgagee,  on  account  of  a  right 
to  re-purchase  being  given  to  the  vendor,  though  at  an  advanced  price.  Ver- 
ner  v.  Wiustanley  2  Sch.  &Lefroy,  393.  And  2dly,  That  where  the  mortgagee, 
or  trustee  for  him,  is  authorized  to  sell  if  the  money  be  not  paid  at  a  particular 
time  he  may  make  a  good  title  to  a  purchaser,  though  the  mortgagor  do  not 
join  in  the  conveyance.  Clay  v.  Sharpe,  Cha.  M.  Terra,  1802,  reported  by 
Mr.  Sugden  in  his  Law  of  Vendors,  4th  ed.  App.  No.  XIII. 

3dly.  As  to  the  nature  of  the  estates  of  the  mortgagor  and  mortgagee  ; — it 
was  not,  till  lately,  accurately  settled.  It  was  formerly  contended,  that  the 
mortgagor,  after  forfeiture  of  the  condition,  had  but  a  mere  right  to  reduce 
the  estate  back  to  his  own  possession,  by  payment  of  the  money.  It  is  now 
established,  that  the  mortgagor  has  an  actual  estate  in  equity,  which  may  be 
devised,  granted,  and  entailed  ;  that  the  entails  of  it  may  be  barred  by  fine  and 
recovery ;  but,  that  he  only  holds  possession  of  the  land,  and  receives  the 
rents  of  it,  by  the  will  or  permission  of  the  mortgagee,  who  may  by  ejectment, 
without  giving  any  notice,  recover  against  him  or  his  tenant.  In  this  respect 
the  estate  of  a  mortgagor  is  inferior  to  that  of  a  tenant  at  will.  In  equit}-,  the 
mortgagee  is  considered  as  holding  the  lands  only  as  a  pledge  or  security  for 
payment  of  his  money.  Hence  a  mortgage  in  fee  is  considered  only  as  per- 
sonal estate  in  equity  though  the  legal  estate  vests  in  the  heir,  in  point  of  law. 
Hence  also,  a  mortgagee,  though  in  possession,  will,  in  case  of  a  living  vacant, 
be  compelled  in  equity  to  present  the  nominee  of  the  mortgagor  to  it, — even 
though  nothing  but  the  advowson  is  mortgaged  to  him.  On  the  same  prin- 
ciple there  is  a  possessio  fratris ;  and  tenancy  by  the  curtesy,  of  an  equity 
of  redemption.  Casborne  v.  Scarfe,  1  Atk.  603.  Keech  v.  Hall,  Doug.  21. 
Moss  V.  Gallimore,  ibid.  266.  Amherst  v.  Dawling,  2  Vern.  401.  Gaily  v. 
Selby,  1  Stran.  403.  Gardiner  v.  Griffith,  2  P.  Will.  404.  Mackenzie  v. 
Kobinson,  3  Atk.  559. — In  this  light  the  legislature  has  viewed  the  different 

estates 


205.  a.]  Of  Estates         L.  3.  C.  5.  Sect.  332. 

wJiether  the  feoff  or  ivill  pay  (si  le  feoffor  J  voyt  payer)  at  the  day  limited 
such  sum  or  not :  and  if  he  doth  not  pay,  then  the  land  which  is  put  in 
pledge  iqwn  condition  for  the  payinent  of  the  money ^  is  taken  from  him 
for  ever,  and  so  dead  \\  to  him  upon  condition,  ^c.  And  if  he  doth  pay 
the  money,  then  the  pledge  is  dead  as  to  the  tenant,  ^c. 

[c]  Glanvil.  lib.  "  Mortgage^  is  derived  [c]  of  two  French  words,  viz.  mart, 
vu  'ff'  ^^'%f  that  is  mortuum,  and  gage,  that  is  vadium  or  pignus.  And  it  is 
27*    "'  '    called  in  Latine?/ir>/'<w((m  t;a(;//?/m  or  morr/f/f/tMm.  Now  it  is  called 

here  mortgage  or  mortuum  radium ,  both  for  the  reason  here  ex- 
pressed by  Littleton,  as  also  to  distinguish  it  from  that  which  is 
called  vivum  vadium.  Vimm  atUem  dicitur  vadium  quia  nunquam 

morilur 

I  voyt — poet    in    L.   and   M.   and     he  doth  pay  the  money,  then  the  pledge 
Roh.  is  dead,  not  in  L.  and  M.  or  E,oh. 

II  to  him  upon  condition;  &c.  and  if 

estates  of  mortgagor  and  mortgagee  in  the  statutes  of  the  4th  &  5th  of  Will, 
and  M.  c.  16,  and  7  Ann.  c.  19. 

4thly.  As  to  the  nature  of  an  equity  of  redemption  ; — originally  there  was  no 
right  of  redemption  in  the  mortgagor.  Lord  Hale,  in  the  case  of  Roscarrick 
V.  Barton,  1  Chan.  Ca.  219.  says,  that  in  the  14th  year  of  Richard  II.  the 
parliament  would  not  admit  of  redemption.  See  the  printed  Rolls,  vol.  3.  p. 
259.  It  was,  however  admitted  not  long  after.  Rut,  after  its  admission,  if 
the  money  was  not  paid  at  the  time  appointed,  the  estate  became  liable,  in  the 
hands  of  the  mortgagee,  to  his  legal  charges,  to  the  dower  of  his  wife,  and  to 
escheat ;  and  it  was  an  opinion,  that  there  was  no  redemption  against  those 
who  came  in  by  the  post.  This  introduced  mortgages  for  long  terms  of  years. 
These  are  attended  with  this  particular  advantage,  that,  on  the  death  of  the 
mortgagee,  the  terme  and  the  right  in  equity  to  receive  the  mortgage  debt 
vest  in  the  same  person :  whereas,  in  cases  of  mortgages  in  fee,  the  estate,  on 
the  death  of  the  mortgagee,  goes  to  his  heir,  or  devisee,  and  the  money  is  pay- 
able to  his  executor  or  administrator.  This  produces  a  separation  of  rights, 
that  is  often  attended  with  great  inconvenience,  both  to  the  mortgagor  and 
mortgagee.  On  the  other  hand,  in  case  of  mortgages  for  yeares,  there  is  this 
defect,  that  if  the  estate  is  foreclosed,  the  mortgagee  will  be  only  entitled  for 
his  term. — The  difference  between  a  trust  and  an  equity  of  redemption,  is 
observed  by  lord  Hale,  in  the  case  of  Pawlett  and  the  Attorney-general, 
Hard.  465. — In  respect  to  the  right  of  the  widow  of  a  mortgagee  in  fee  to  her 
dower,  she  is  certainly  entitled  to  it  at  law  ;  but  it  is  so  clear,  that,  if  she 
should  attempt  to  recover  it  by  a  writ  of  dower,  a  court  of  equity  would  stay 
the  proceeding,  that,  in  accepting  titles,  it  is  never  attended  to.  The  same 
observation  applies  to  the  husband's  estate  by  the  curtesy,  after  his  wife's 
decease. 

5thly.  It  now  appears  to  be  settled,  that  estates  in  mortgage  and  trust  estates 
will  pass  by  a  devise  in  general  terms,  unlexs  an  intention  to  the  contrary  can  he 
inferred,  either  from  expressions  in  the  will,  or  from  the  objects  of  the  devise, 
Marlow  V.  Smith,  2  Peere  Williams,  198.  Att.  Gen.  v.  Philips,  heard  in  Cha. 
on  the  16th  Nov.  1767.  Duke  of  Leeds  v.  Munday,  3  Ves.  348.  5  Ves.  341. 
Ex  parte  Sergison,  4  Ves.  147.  Att.  Gen.  v.  Bowyer,  5  Ves.  300.  Att.  Gen. 
V.  Ruller,  5  Ves.  399.  Braybrooke  v.  Inskip,  8  Ves.  437.  Att.  Gen.  v.  Vigors 
8  Ves.  283.  Ex  parte  Morgan,  10  Ves.  101.  Broome  v.  Monk,  10  Ves.  605. 
Roe  on  the  demise  of  Read  v.  Read,  8  Burn,  and  East,  118.— To  prevent  any 
ciucstion  of  this  kind  from  arising,  it  is  advisable,  that  in  wills  there  should 
be  an  express  devise  of  the  estates  held  by  the  testator  in  trust  or  mortgage. — 
[Note  96.] 


L.  3.  C.  5.  Sect.  333-34.  upon  Condition.  [205.  a.  205.  b. 

moritur  ex  aliqud  parte  quod  ex  suis proventuhus  acquiratur.   As 

if  a  man  borrow  a  hundred  pounds  of  another,  and  maketh  an 

estate  of  lands  unto  him,  untill  he  hath  received  the  said  sum 

of  the  issues  and  the   profits  of  the  land,  so  as   in   this  case 

neither  money  nor  land  dieth,  or  is  lost,  whereof  Littleton  hath 

spoken  [d]  before  in   this   Chapter)   and  therefore   it   is  called  [(fj  vid.  Sect. 

vivum  vadium.  327. 


po5.-i  m-  Sect.  333. 

ALSO,  as  a  man  may  make  a  feoffment  in  fee  in  mar  gage  *«o  a  man 

may  make  a  gift  in  tayle  in  morgage,  and  a  lease  for  terme  of  life, 

or  for  terme  of  y  eaves  in  morgage.     t  -A-nd  all  such  tenants  are  called 

tenants  in  morgage,  according  to  the  estates  which  they  have  in  the 

land,  ^c. 

This  Section  upon  that  which  hath  been  said  needeth   no 
further  explication. 


Sect.  334. 


A  LSO,  if  a  feoffment  he  made  in  morgage  upon  condition,  that  the 
feoffor  shall  pay  such  a  sum  at  such  a  day,  ^'c.  as  is  bettveen  them  by 
their  deed  indented,  agreed  and  limited  (come  est  |  enter  eux  per  lour 
fait  endent  accorde  et  limit),  although  the  feoffor  dyeth  before  the  day 
of  payment,  ^c.  yet  if  the  heire  of  the  feoffor  (uncore  si  le  heire  |1  le 
feoffor)  pay  the  same  sum  of  money  (mesme  le  summe  §  de  money)  at 
the  same  day  to  the  feoffee,  or  tender  to  him  the  money,  and  the  feoffee 
refuse  to  receive  it,  then  may  the  heir  enter  into  the  land  ;  and  yet  the 
condition  is,  that  if  the  feoffor  shall  p>ay  such  a  sum  at  such  a  day,  ^'c. 
not  making  mention  in  the  condition  of  any  payment  to  be  made  by  his 
heir,  but  for  that  the  heir  hath  interest  of  right  in  the  condition,  ^j-c.  and 
the  intent  was  that  the  money  should  be  pay d  at  the  day  assessed,  ^c. 
and  the  feoffee  hath  no  more  losse,  if  it  be  paid  by  the  heir,  than  if  it 
were  paid  by  the  father,  ij-c.  therefore  if  the  heir  pay  the  money,  or  ten- 
der the  money  at  the  day  liinited,  ^c.  and  the  other  refuse  it,  lie  may 
enter,  ^c.  But  if  a  stranger  of  his  own  head,  ivho  hath  not  any  interest, 
^c.  will  tender  the  aforesaid  money  to  the  feoffee  (voile  tender  les  ** 
avantdits  denicrs  al  feoffee)  at  the  day  appointed,  the  feoffee  is  not  bound 
to  receive  it  (le  feoffee  n'est  ff  pas  tonus  de  ceo  receiver.) 

"  THAT 


*  so  a  man  may  make  a  gift  in  tayle  §  de  money  not   in  L.   and  31.  or 

in  mortgage  not  in  L.  and  M.  or  Roh.  Roh. 

f  And  not  in  L.  and  M.  or  Roh.  **  avantdits  not  in  L.  and  M.  but 

i  enter — perenter,  L.  and  M.   and  in  Roll. 

Roh.  ff  pas  not  in    L.   and  M.   but  in 

11  de  added  in  L.  and  M.  and  Roll.  Roh. 


r.'-] 


205.  b.  206.  a.  J  Of  Estates      L.  3.  C.  5.  Sect.  334 

27  II.  8. 19.  b.  '(  rpiIA  T  the  feoffor  shall  j,ay  at  such  a  day,  &c''  Albeit  cnn- 
Lib.  8.  fol.  91.  J-  (jjtJQjjs  be  not  favoured,  yet  they  are  not  alwayes  taken 
(1  Roll.  426.)  '     literally,  but  in  this  case,  the  law  enableth  the  heir  that  was  not 

named  to  perform  the  condition  for  four  causes  (1)  f. 
(Post.  219.  b.)  First,  because  there  is  a  day  limited,  so  as  the  heir  commeth 

within  the  time  limited  by  the  condition,  for  otherwise  he  coula 
not  do  it,  as  shall  be  said  hereafter  in  this  Chapter. 

Secondly,  For  that  the  condition  descends  unto  the  heir,  and 
therefore  the  law  that  giveth  him  an  interest  in  the  condition, 
giveth  him  an  abilitie  to  perform  it. 

Thirdly,  For  that  the   feoffee  doth  receive  no  damage  or  pre 
judice  thereby  (all  these  reasons  are  expressly  to  be  collected  out 
of  the  words  of  Littleton).      And  these  things  being  observed, 
Fourthly,  The  intent  and  true  meaning  of  the  condition  shall 
be  performed.     And  where  it  is   here  said,  that  the  heir  may 
tender  at  the  day  limited,  d-c.  herein  is  implyed,  that 
J|@°"  the  executors  or  administrators  of  the  morgagor  f  206. 
or  in  default  of  them  the  ordinary  may  also  tender,  as 
{f'\  Vid.  Sect,     shall  be  said  [/]  hereafter  in  this  Chapter.  But  what 
337.  if  the  condition    had   been,  if  the   morgagor  or  his  heirs  did 

pay,  &c.  and  he  died  before  the  day  without  heir,  so  as  the 
condition  became  impossible,  here  it  is  to  be  observed,  that 
where  the  condition  becometh  impossible  to  be  performed  by  the 
act  of  God,  as  by  death,  &c.  the  state  of  the  feoffee  shall  not 
be  avoyded,  as  shall  be  said  hereafter  in  this  Chapter.  And 
therefore  the  law  here  inableth  the  heir  (of  whom  no  mention 
was  made  in  the  condition)  to  perforrae  the  condition,  lest  the 
inheritance  should  be  lost,  wherein  divers  diversities  are  worthy 
of  observation  (1). 

First, 

(1)  "j"  V.  T.  15  Jac.  After  covenant  to  stand  seised  to  the  use  of  B.  and  his 
heirs,  with  proviso  of  revocation  on  payment  to  B.  and  his;  assigns  ;  B.  dies  ;  he 
viay  tender  to  the  heir,  and  revoke.  Allen's  case,  Ley,  55.  b.  Hal,  Mass. — 
[Note  97.] 

(1)  Lord  Coke  here  considers  the  effect  of  impossible  conditions.  1st. 
Where  they  are  possible  at  the  time  of  their  creation,  but  afterwards  become 
impossible  ;  and  he  distinguishes  that  impossibility  which  is  produced  by  the  act 
of  God,  and  that  which  is  produced  by  the  act  of  the  party.  2dly.  When  they 
are  impossible  at  the  time  of  their  creation.  3dly.  When  they  are  against  law, 
either  as  malaprohihita,  or  mala  inse.  4thly.  When  they  are  repugnant  to  the 
grant  by  which  they  arc  created,  or  to  the  estate  to  which  they  are  annexed. 
It  should  be  observed,  that  a  condition  is  then  only  considered  in  the  eye  of  the 
law  as  impossible  at  the  time  of  the  creation,  if  it  cannot  by  any  means  take 
effect.  Such  is  the  case  put  by  lord  Coke,  that  the  obligee  shall  go  from  the 
church  of  St.  Peter  at  Westminster  to  the  church  of  St.  Peter  at  Rome,  within 
three  hours.  But,  if  it  only  bo  in  an  high  degree  improbable,  and  such  as  is 
beyond  the  power  of  the  obligee  to  effect,  it  is  not  then  considered  as  impos- 
sible. See  the  cases  of  this  nature  in  1  Boll.  Abr.  419,  420. — It  is  said,  that 
if  the  condition  of  a  bond  be  to  pay  a  certain  sum,  or  to  do  any  other  act  out 
of  his  majesty's  dominions,  the  condition  is  void,  and  the  bond  is  single,  be- 
cause the  performance  of  it  cannot  be  tried.  See  21  Edw.  4.  10. — It  was  upon 
a  similar  principle,  that  if  a  man  professed  himself  a  monk  in  a  religious  house 
beyond  seas,  it  was  no  disability,  because  the  fact  could  not  be  tried.  For 
the  only  method  which  the  law  had  to  know  if  a  man  was  professed,  was  to 
issue  a  writ  in  the  king's  name  to  the  bishop  of  the  diocese,  commanding  him 
to  certify,  if  such  a  monk  was  professed,  in  such   a  house,  in  such  a  place, 

within 


L.  3.  C.  5.  Sect.  334.  upon  Condition.    [206.  a.  206.  b. 

First,  between  a  condition   annexed  to  a  state  in   lands   or 
tenements  upon  a  feoffment,  gift  in  taile,  &c.  and  a  condition  of 
an  obligation,  recognizance  or  such  like,     [g]  For  if  a  condition  |;^]  pi.  com. 
annexed  to  lands  be  possible  at  the  making  of  the  condition,  and  45fi.  Wrothe's 
become  impossible  by  the  act  of  God,  yet  the  state  of  the  feoffee,  ^^*'jj  ^  ^ 
&c.  shall  not  be  avoyded.     As  if  a  man  maketh  a  feoffment  in  15  n.  7.  1. 
fee  upon  condition,  that  the  feoffor  shall  within  one  year  go  to  14  E.  4.  3. 
the  citie  of  Paris  about  the  affaires  of  the  feoffee,  and  presently  ^^  ^^-  ^-  ^-  ^• 
after  the  feoffor  dyeth,  so  as  it  is  impossible  by  the  act  of  God 
that  the  condition   should  be  performed,  yet  the  estate  of  the 
feoffee  is  become  absolute ;  for  though  the  condition  be  subse- 
quent to  the  state,  yet  there  is  a  precedency  before  the  re-entry, 
viz.  the  performance  of  the  condition.     And  if  the  land  should 
by  construction  of  law  be  taken  from  the  feoffee,  this  should  work 
a  damage  to  the  feoffee,  for  that  the  condition  is  not  performed 
which  was  made  for  his  benetit.     And  it  appcareth  by  Littleton, 
that  it  must  not  be  to  the  damage  of  the  feoffee ;  and  so  it  is  if 
the  feoffor  shall  appeare  in  such  a  court  the  next  term,  and 
before  the  day  the  feoffor  dyeth,  the  estate  of  the  feoffee  is  abso- 
lute,    [/t]  But  if  a  man  be  bound  by  recognizance  or  bond  with  [h]  15  11.  7.  18. 
condition  that  he  shall  appear  the  next  term  in  such   a  court,  ^t  H.  6. 
and  before  the  day  the  conusee  (A)  or  obligor  dyeth,  the  recog-  jg"i!;%  {■^ 
nizauce  or  obligation  is  saved  ;  and  the  reason  of  the  diversitie  is,  9  Eliz.  202. 
because  the  state  of  the  land  is  executed  and  settled  in  the  feoffee,  D.v«r.  lib.  5.  22. 
and  cannot  be  redeemed  back  again  but  by  matter  subsequent,  33^  j£ 'g'^y  *^**°' 
viz.  the  pei'formance  of  the  condition.     But  the  bond  or  recogni- 
zance is  a  thing  in  action,  and  executory,  whereof  no  advantage 
can  be  taken  until  there  be  a  default  in  the  obligor;  and  there-  Fleta.lib. 4.cap. 
fore  in  all  ca«es  where  a  condition  of  a  bond,  recognizance,  &c.  9-  &  Bmcton  _ 
is  possible  at  the  time  of  the  making  of  the  condition,  and  before  ^^Bi|^i"on,  ubi 
the  same  can  be  performed,  the  condition  becomes  impossible  by 
the  act  of  God,  or  of  the  law,  or  of  the  obligee,  &c.  there  the 
obligation,  &c.  is  saved.     But  if  the  condition  of  a  bond,  ka.  be 
impossible  at  the  time  of  the  making  of  the  condition,  the  obli- 
gation, &c.  is  single.     And  so  it  is  in  case  of  a  feoffment  in  fee 
with  a  condition  subsequent  that  is  impossible,  the  state  of  the 
feoffee  is  absolute:  but  if  the  condition  precedent  be 

[306."]  impossible,  no  Mg""  state  or  interest  shall  grow  there- 
b.     J  upon.     And  to  illustrate  these  by  examples  you  shall  (1  Leon.  229. 
understand.     If  a  man  be  bound  in  an  obligation,  &c.   L''^"'*' ,^^%, 
with  condition  that  if  the   obligor  do  go  from  the   church  of  291."    864.) 

14  H.  8.  28.     10  H.  7.  22.     4  H.  7.  4.     8  E.  4.  1.     28  H.  8.  25.  lib.  5.  fo.  22. 
Laughter's  case,  &  75.  39  H.3.  5.  17  H.  6.  Obligat.  18.  5  El.  Dier,  222. 

St.  Peter 
(A)   Instead  of  coTwisoc  it  nhould  he  conusor,  as  it  seems.  See  Mr.  Ritso's  Intr.  p.  119. 

within  his  diocese.  But  this  method  could  not  be  used  with  respect  to  foreign 
professions,  as  the  bishop  was  not  bound  to  obey  the  king's  writ,  and  might 
certify  either  true  or  false,  without  subjecting  himself  to  punishment.  For 
this  reason,  no  notice  was  taken  in  our  law  of  foreign  profession.  Thus 
L.  Rolle,  2  Abr.  4o.  says,  "If  an  Englishman  goes  into  France,  and  there 
"becomes  a  monk,  he  is,  notwithstanding,  capable  of  a  grant  in  England; 
"  for  that  such  profession  is  not  triable;  and  also,  for  that  all  profession  is 
"taken  away  by  the  statute;  and,  by  our  religion,  now  received,  such  vows 
"and  profession  are  held  void.  I  have  heard,"  continues  he,  "that  this  was 
"  in  44  Eliz.  in  one  Ley's  case,  resolved  accordingly  by  all  the  justices  in  Chan- 
"  eery-lane."— [Note  98.] 


206.  b.] 


Of  Estates 


L.  3.  C.  5.  Sect.  334. 


*   PI.  Cora.  Ful- 
ler's case,  272. 
(IRoll.  Abr. 
418.  Post.  217. 
b.  218.) 
35  H.  6.  tit. 
Barre,  262. 
37  H.  6.  Barre, 
60.     2E.  3.  9. 

9  El.  Dyer,  262. 
28  H.  8.  30. 
(8th  Hop.  83.  a. 
92.  a.  Hob.  24.) 
[,•]  4  H.  7.  4. 
30H.8.Dver,42. 
n  H.  4.  57. 

in  protection. 

10  H.  7.18. 
(Doc.  Pla.  230.) 
[k]  Vid.  Bract. 
Britton,  Fleta, 
ubi  supra. 
Bracton,  lib.  3. 
fol.  100. 

2  H.  4.  9. 
8  E.  4.  12.  b. 
2E.4.  2.  &  3. 
4H.  7.4.  b. 
10  H.  7.  22. 
14  H.  8.  28. 
42  E.  3.  6.  23. 
(IRoll.i.br. 
418.  Plo.  64.  b.) 
2  H.  4.  9. 
(2Ven.  109.) 

(PI.  Com. 
Browning's 
case,  133.) 
(Post.  Sect.  300 
10  Rep.  38. 
Hob.  170. 
1  Roll.  Abr. 
419.) 


7  H.  6.  43.  b. 
21  H.  6.33. 
21  H.  7.  11. 
21  H.  7.  30. 
20  E.  4.  8. 
(i\Ioore,810. 
Post.  225.) 
PI.  Com.  in 
Browning's 
case,  133.  a. 
27  H.  8. 


St.  Peter  in  Westminster  to  the  church  of  St.  Peter  in  Rome 
within  three  hours,  then  that  the  obligation  shall  be  voyd.  The 
condition  is  voyde  and  impossible,  and  the  obligation  standeth 
good. 

And  so  it  is  if  a  feoffment  be  made  upon  condition  that  the 
feoflFee  shall  go  as  is  aforesaid,  the  state  of  the  feoffee  is  abso- 
lute, and  the  condition  impossible  and  voyde. 

*If  a  man  make  a  lease  for  life  upon  condition  that  if  the  lessee 
go  to  Rome,  as  is  aforesaid,  that  then  he  shall  have  a  fee,  the 
condition  precedent  is  impossible  and  voyde,  and  therefore  no  fee 
simple  can  grow  to  the  lessee. 

If  a  man  make  a  feoffment  in  fee  upon  condition  that  the  feoffee 
shall  re-enfeoffe  him  before  such  a  day,  and  before  the  day  the 
feoffor  disseise  the  feoffee,  and  hold  him  out  by  force  untill  the 
day  be  past,  the  state  of  the  feoffee  is  absolute,  for  "the  feoffor 
is  the  cause  wherefore  the  condition  cannot  be  performed,  and 
therefore  shall  never  take  advantage  for  non-performance 
thereof  [i]."  And  so  it  is  if  ^4.  be  bound  to  B.  that  /.  S.  shall 
marry  Jane  G.  before  such  a  day,  and  before  the  day  B.  marry 
with  Jane,  he  shall  never  take  advantage  of  the  bond,  for  that  he 
himself  is  the  mean  that  the  condition  could  not  be  performed. 
And  this  is  regularly  true  in  all  cases. 

But  it  is  commonly  holden  \k]  that  if  the  condition  of  a  bond, 
&c.  be  against  law,  that  the  bond  itself  is  voyd. 

But  herein  the  law  distinguisheth  between  a  condition  against 
law  for  the  doing  of  any  act  that  is  malum  in  se,  and  a  condition 
against  law,  (that  concerneth  not  any  thing  that  is  malum  in  se) 
but  therefore  is  against  law,  because  it  is  either  repugnant  to  the 
state,  or  against  some  maxime  or  rule  in  law.  And  therefore  the 
common  opinion  is  to  be  understood  of  conditions  against  law 
for  the  doing  of  some  act  that  is  malum  in  se,  and  yet  therein  also 
the  law  distinguisheth.  As  if  a  man  be  bound  upon  condition  that 
he  shall  kill  1.  S.  the  bond  is  voyd. 

But  if  a  man  make  a  feoffment  upon  condition  that  the  feoffee 
shall  kill  /.  *S^.  the  estate  is  absolute,  and  the  condition  voyd. 

If  a  man  make  a  feoffment  in  fee  upon  condition  that  he  shall 
not  alien,  this  condition  is  repugnant  and  against  law,  and  the 
state  of  the  feoffee  is  absolute  (whereof  more  shall  be  said  in  his 
proper  place).  But  if  the  feoffee  be  bound  in  a  bond,  that  the 
feotfee  or  his  heires  shall  not  alien,  this  is  good,  for  he  may 
notwithstanding  alien  if  he  will  forfeit  his  bond  that  he  himself 
hath  made. 

So  it  is  if  a  man  make  a  feoffment  in  fee  upon  condition  that 
the  feoffee  shall  not  take  the  profits  of  the  land,  this  condition 
is  repugnant  and  against  law,  and  the  state  is  absolute. 

Bat  a  bond  with  a  condition  that  the  feoffee  shall  not  take  the 
profits  is  good.  If  a  man  be  bound  with  a  condition  to  enfeoffe 
his  wife,  the  condition  is  void  and  against  law,  because  it  is 
against  the  maxime  in  law,  and  yet  the  bond  is  good;  but  if  he 
be  bound  to  pay  his  wife  money,  that  is  good.  Et  sic  ile  similibus, 
whereof  there  be  plentifuU  authorities  in  our  bookes(l). 

"  Tender 


(1)  It  is  observed  in  1  P.  W.  189,  that  "  all  instances  of  conditions  against 
"  law,  in  a  legal  sense,  are  reducible  under  one  of  these  three  heads ;  either,  to 

"do 


L.  3.  C.  5.  S.  334.        upon  Condition.  [206.  b. 

"  Tender  the  money  at  the  day  limited,  &c."    Note,  hereby  is  Vide  Sect.  325. 
implyed,  that  albeit  a  convenient  time  before  sun  set  be  the  last  (5  Rep.  114.) 
time  given  to  the  feoffor  to  tender,  yet  if  he  tender  it  to  the  per- 
son of  the  mortgagee  at  any  time  of  the  day  of  payment,  and  he 
refuse th  it,  the  condition  is  saved  for  that  time. 

"He  may  enter,  &c."     And  so  may  his  heir  after  his  death. 

"  But  if  a  stranger  of  his  own  head,  who  hath  not  any  interest, 
&c.  icill  tender  the  aforesaid  money  to  the  feoff ee  at  the  day  ap- 
pointed, the  feoffee  is  not  hound  to  receive  it."      Nota,  by  this  Vide  Sect.  401. 
period  and  the  ((£t.)  it  is  implyed,  that  if  the  morgagor  dye,  his  Hill.  28  Eliz. 
heir  within  age  of  14  yeares  (the  land  being  holden  in  socage),  J"  -Banco  Regis, 
the  next  of  kin  to  whom  the  land  cannot  descend  being  his  gar-  &  Astwick,  pro 
dian  in  socage  may  tender  in  the  name  of  the  heir,  because  he  terris  in  Com. 
hath  an  interest  as  gardian  in  socage.    Also  if  the  heir  be  within  Pf  ^^";  ^^  ^no" 
age  of  21  yeares,  and  the  land  is  holden  by  knights  service,  the  32  e.  l.'tit.' 
lord  of  whom  the  land  is  holden  may  make  the  tender  of  his  in-  Annuity,  51. 
terest  which  he  shall  have  when  the  condition  is  performed,  for  ^^  ^-  ^•^^' 
these  in  respect  of  their  interest  are  not  accounted  estrangers.       Moore'  222. 

But  if  the  heir  be  an  idiot,  of  what  age  soever,  any  man  may  Post.  225.  b. 
make  the  tender  for  him  in  respect  of  his  absolute  disability,  ^25.  a.) 
and  the  law  in  this  case  is  grounded  upon  charity,  and  so  in  like 
cases. 

"  The  feoffee  is  not  bound  to  receive  it."     And    note    that  35  h  6  tit 

Barre,  166.     33  E.  1.  tit.     Annuitie,  51.     33  E.  3.     Judgement,  254. 
(Ant.  180.  b.     Post.  245.  a.  258.  a.) 

Littleton 


"do  malum  in se,  or  malum  prohibitum ;  2dly,  to  omit  the  doing  of  something 
'Hhat  is  a  duty;  3dly,  to  encourage  such  crimes  and  omissions.  And  such 
"conditions  as  these,  the  law  will  always,  and  without  any  regard  to  circum- 
" stances,  defeat."  It  is  not  within  the  plan  of  these  notes  to  enumerate,  or 
discuss,  the  various  instances  in  which  the  conditions  of  bonds  have  been  held 
unlawful  at  law,  or  in  equity.  Those  which  chiefly  deserve  consideration  ate 
such  as  relate  to,  1st,  Bonds  given  for  procuring  marriages,  or  what  is  usually 
called  marriage  brokage.  See  Hall  v.  Potter,  8  Levinz,  411.  Shower's  Par. 
Cas.  76.  1  Brown's  Par.  Gas.  60.  Scribblehill  v.  Brett,  1  Brown's  Pari. 
Cases,  57.  Keat  v.  Allen,  2  Vern.  588.  Cole  v.  Gibson,  1  Vez.  503.  2dly, 
Bonds  restraining  the  obligor  from  a  free  exercise  of  a  trade.  Here,  if  the  re- 
straint bo  qualified,  so  as  only  to  take  in  a  particular  place,  and  the  breach  of 
the  condition  tends  apparently  to  the  detriment  of  the  obligee,  and  a  considera- 
tion is  given  by  the  obligee  to  the  obligor  for  executing  the  bond,  the  condition 
will  not  be  impeached  either  at  law  or  in  equity.  See  1  P.  W.  190,  191.  10 
Mod.  133.  3dly,  Bonds  of  resignation.  The  validity  of  these  bonds,  and  the 
propriety  of  their  being  supported,  considered  as  a  matter  of  policy,  was  most 
elaborately  and  ably  discussed  in  the  great  cause  of  the  bishop  of  London  and 
Fytche,  heard  on  appeal  in  the  house  of  lords  in  May  1783.  A  state  of  this 
case,  and  of  the  arguments  and  speeches  of  the  lords,  prelates,  and  judges  who 
spoke,  when  it  was  heard  before  the  lords,  is  to  be  found  in  Mr.  Cunningham's 
Law  of  Simony. — It  seems  to  be  settled,  that  if  a  bond  is  given  with  a  condi- 
tion to  do  several  things,  and  only  some  of  them  are  against  law,  the  bond 
shall  be  good  as  to  the  doing  the  things  agreeable  to  law,  and  only  void  as  to 
those  which  are  against  law.  Norton  v.  Simmcs,  Hob.  12.  Mosdell  v.  Mid- 
dleton,  1  Vent.  237.  Pearson  v.  Humes,  Carter,  229.  Chesman  v.  Nainby, 
2  Lord  Raymond,  1456.— [Note  99.1 
Vol  II.— U 


206.  b.  207.  a.]  Of  Estates      L.  3.  C.  5.  Sect.  335. 

Littleton  saith,  that  he  is  not  bound  to  receive  it  at  a 
stranger's  hand.  But  if  any  stranger  in  the  name  f  2 07.1 
B@°"of  the  morgagor  or  his  heir  (without  his  consent  L  ^-  J 
or  privity)  tender  the  money,  and  the  morgagee  ac- 
cepteth  it,  this  is  a  good  satisfaction,  and  the  morgagor  or  his 
heir  agreeing  thereunto  may  re-enter  into  the  land;  onini's  rati- 
hahitio  retro  trahitur  et  niandati  aequiparatur.  But  the  morgagor 
or  his  heir  may  disagree  thereunto  if  ha  will. 


Sect.  335. 

A  ND  he  it  remembered  that  in  sueh  case,  2vhere  such  tender  of  the 
money  is  made,  ^c.  and  the  feoffee  refuse  to  receive  it,  by  which, 
the  feoffor  or  his  heires  enter,  ^c.  then  the  feoffee  hath  no  remedy  by 
the  common  law  to  have  this  money,  because  it  shall  be  accounted  his 
0W71  folly  that  he  refused  the  money,  when  a  laivful  tender  of  it  loas 
made  unto  him  (1). 

"  rpENBER  of  the  money  is  made,  dx."     Here  is  implyed  at 
the  due  time  and  place  according  to  the  condition. 

'^  Enter,  &c."  viz.  into  the  lands  or  tenements. 

"  Then  the  feoffee  hath  no  remedy  by  the  common  law  to  have 
8  E.  2.  tit.  Ass.  this  money,  &c.'"  x\nd  the  reason  is,  because  the  money  is  col- 
389.  31  Ass.  32.  laterall  to  the  land,  and  the  feoffee  hath  no  remedy  therefore. 

If  an  obligation  of  an  hundred  pound  be  made  with  condition 

for  the  payment  of  fifty  pound  at  a  day,  and  at  the  day  the  obli- 

(2  Roll.  Abr.        gor  tender  the  money,  and  the  obligee  refuseth  the  same,  yet  in 

523,  524.)  Sid.     action  of  debt  upon  the  obligation,  if  the  defendant  plead  the 

oo'u*^i'  on^'  tender  and  refusall,  he  must  also  plead  that  he  is  yet  ready  to 
22  H.  6.  39.  ,  1,11  •  ,      T.    i  -n  ,.1         )    • 

21  E.  4.  25.         pay  the  money,  and  tender  the  same  in  court.    But  it  the  plain- 

22  E.  3.  5.  tife  will  not  then  receive  it,  but  take  issue  upon  the  tender,  and 
Lib.  9.  fo.  79.  i^jjg  same  be  found  against  him,  he  hath  lost  the  money  forever. 
(2  Roil.  Abr.  '  If  ^  ''^^'^  "^e  bound  in  200  quarters  of  wheat  for  dcliverie  of  a 
523.  100  quarters,  if  the  obligor  tender  at  the  day  a  100  quarters,  &c. 
Dyer,  24.  b.  j^g  gi^all  not  plead  uncore  prist,  because  albeit  it  be  parcell  of  the 

condition,  yet  they  be  bona  per itura,  and  it  is  a  charge  for  the 
obligor  to  keep  them.     And  the  reason  wherefore  in  the  case  of 
8  E.  2.  tit.   Ass.  the  obligation  the  sum  mentioned   in   the  condition  is  not  lost 
3S'3-  by  the  tender  and  refusall,  is  not  only  for  that  it  is  a  duty  and 

parcel  of  the  obligation,  and  therefore  is  not  lost  by  the  tender 
and  refusall,  but  also  for  that  the  obligee  hath  remedy  by  law 

for 


(1)  Here  the  performance  of  the  condition  is  excused  by  the  default  of  the 
feoffee  or  obligee,  viz.  by  tender  and  refusal.  It  is  also  excused,  1.  By  his 
absence  in  those  cases  where  his  presence  is  necessary  for  the  performance  of 
the  condition.  2.  By  his  obstructing  or  preventing  the  performance.  And 
3.  By  his  neglecting  to  do  the  first  act,  if  it  is  incumbent  on  him  to  perform 
it.  See  the  cases  in  1  Roll.  Abr.  457,  458.  It  is  also  excused,  in  some  cases, 
by  his  not  giving  notice  to  the  feoffee  or  obligee.  See  1  Boll.  Abr.  463.  467, 
46?.— [Note  100. 


L.  3.  C.  o.  Sect.  335.       upon  Condition.  [207.  a. 

for  the  same.     And  in  this   case,  liherata  pecunia  non  liherat 
ufferentum. 

J?ut  if  a  man  make  a  single  bond,  or  knowledge  a  statute  or  (2  Saund.  48.) 
recognizance,  and  afterwards  make  a  defeasance   for  the  pay-  7  H.  4.  18. 
ment  of  a  lesser  sum  at  a  day,  if  the  obligor  or  conusor  tender  Dier*^  i'5() 
the  lesser  sum  at  the  day,  and  the  obligee  or  conusee  refuseth  21  E*.  4.  25. 
it,  he  shall  never  have  any  remedy  by  law  to  recover  it,  because  22  E.  3.  5. 
it  IS  no  parcell  of  the  sum  contained  in  the  obligation,  statute,  Ji  ^^      ,■  ^ 
or  recognizance,  being  contained  in  the  defeasance  made  at  the  20  E.  4.  1.  b.' 
time  or  after  the  obligation,  statute,  or  recognizance.     And  in  9  H.  6.  16. 
this  case  in  pleading  of  the  tender  and  refusall  the  partie  shall  ^^  ^'  ^'  ^ 
not  be  driven  to  plead,  that  he  is  yet  ready  to  pay  the  same  or  ig  h.  7',  13, 
to  tender  it  in  court :  neither  hath  the  obligee  or  conusee  any  18  E.  3.  5.3. 
remedy  by  law  to  recover  the  sum  contained  in  the  defeasance.  \^\x^'^\^<^ 
[0]  And  so  it  is  if  a  man  make  an  obligation  of  100  pound  with  27  h!  8. 1.  a. 
condition  for  the   deliverie  of  corne,  or  timber,  &c.   or  for  the  22  H.  6.  39.  tit. 
performance  of   an  arbitrement,  or  the   doing  of  any  act,  &c.  fq^^^^'^o^'  ^^" 
This  is  coUaterall  to  the  obligation,  that  is  to  say,  is  not  par-  jg  jj"  g'_  {2^ 
cell  of  it,  and  therefore  a  tender  and  refusall  is  a  perpetual  [o]  Henry  Ya-y- 

bar  (2).  toe's  case,  ubi. 

But  if  a  man  be  bound  to  make  a  feoffment  in  fee  to  the  3"  Xsg.  25. 
obligee,  and  he  make  a  lease  and  release  to  him  and  his  heires,  11  H.  4.  33. 
albeit  this  be   a  collateral  condition,  yet  it  is  well  performed,  ^^•^•^* 
because  this  amounts  in  law  to  a  feoffment  (3).  7  ^_  4*  3' 

PI.  Com.  Fogasse's  case,  fo.  6.    (Moore,  36,  37.  Post.  236.  b.) 

"  Money  J 


(2)  In  the  10th,  11th,  and  12th  editions,  there  is,  in  the  margin,  a  reference 
to  3  Cro.  755;  but  there  is  no  such  page  in  that  volume  of  Croke.  Most  pro- 
bably it  is  misprinted,  for  1  Cro.  755.  Cotton  v.  Clifton,  where  it  was  held, 
"  that,  where  an  obligation  is  made,  and  afterwards  a  defeasance  is  made 
"  therefore,  if  he  pays  a  less  sum,  there,  if  he  pleads  the  defeasance  and  the 
"  tender  of  the  lesser  sum,  he  need  not  to  say,  tout  temps  prinst;  for,  by  the 
"  tender,  he  was  discharged  of  all;  but  otherwise  it  is  of  an  obligation,  with 
"  a  condition  to  pay  a  lesser  sum." — [Note  101.] 

(3)  No  authority  is  cited  for  this  position.  In  Plowd.  156.  it  is  laid  down, 
that  a  lease  and  release  may  be  pleaded  as  a  feoffment;  and  in  1  Finch,  48.  and 
2  Finch.  68.  it  is  said,  that  a  lease  and  release  amounts  to  a  feoffment.  But 
this  must  be  understood  with  some  qualifications,  as  the  operation  of  a  feoff- 
ment is,  in  some  instances,  much  more  forcible,  and  of  course  may  be  much 
more  beneficial  to  the  person  entitled  to  the  benefit  of  the  condition,  than 
the  operation  of  a  lease  and  release.  The  nature  of  a  feoffment  will  be 
considered  in  one  of  the  notes  to  the  chapter  of  Release. — With  respect  to 
the  difference  adverted  to  above,  between  the  operation  of  a  lease  and  release, 
and  the  operation  of  a  feoffment;  it  is  immaterial  whether,  by  the  lease,  is 
understood  a  bargain  and  sale  for  years  under  the  statute,  or  a  lease  at  com- 
mon law,  with  an  actual  entry  by  the  lessee.  In  either  case,  though  the  lessor 
had  the  possession,  yet,  unless  he  was  seised  of  the  freehold,  when  he  executed 
the  lease,  his  release  would  not  vest  an  estate  of  freehold  in  the  releasee.  But 
his  feoffment,  if  he  had  but  a  mere  possession,  would  vest  the  freehold  in  the 
feoffee.  In  the  same  manner,  if  tenant  for  life  enfeoffs  in  fee,  it  divests  the 
whole  inheritance,  and  is  a  forfeiture  of  his  estate.  But  nothing  of  this  'n 
produced  by  a  release  grounded  on  a  previous  lease,  either  at  common  law  Of 
by  the  statute.— [Notc'102.] 


207.  a.  207.  b.]  Of  Estates     L.  3.  C.  5.  Sect  336. 


Lib.  5.  fol.  114,       ^^  Money,  monefa,  Icgalis  moneta   Amjlkv,"   lawful  money  of 

115-    ^  En(/la7ul,ehher  in  gold  or  silver,  is  of  two  sorts,  viz. 

1^^9^'for78        ^^*^  English  money  coyned  by  the  king's  B@°^  authorite,  r207."| 

( 5  Rop.  iuV       or  forraine  coyue  by  proclamation  made  current  within  L     b.     J 

Wade's  case,        therealme.    Cuyne,  cunadicihir  a  ctu/eniJo,  of  coyu'iug 

3  Inl  93^)  ^^"^   °^  money.     In   French    coine   signifieth   a  corner,    because   in 

ancient  time  money  was  square  with   corners,  as  it  is  in  some 

counti'ies  at  this  day.      Some  say  that  coine  dicitur  a  jcatvoj,  id  est 

communis,  quod  sit  omnibus  rehus  communis.     Moneta  dicitur  d 

monendo,  not  only   because   he   that  hath  it,  is   to  be  warned 

Aristotle,  lib.  5.  providently  to  use  it,  but  also  because  nota  ilia  de  aufhore  et 

cap.  8.  valore  admonet.     Pecunia  dicitur   d  pecu,  beasts,  omnes  enim 

( Cro  Car.  89.  ,.    ..      .  .       ,.,  .      , -^         '       ,.      '  .i,  i.u    i. 

Trover  and  Con-  veterum  divitice  in  ammacious  consistebant  ]  and  it  appearetn  tnat 

version  lies  for    in  Homer's  time  there  was  no  money  but  exchange  of  cattel, 

money  out  of        ^g_    /J^N 

(*)'2  H.  5.  Nummus  ecvo  ra  vo;«,8,  quia  lege  Jit  non  natura.     Vide  (*)  the 

Stat.  2.  cap.  7.      statute  of  9   //.    5,   of  the  noble,  halfe  noble,  and  farthing  of 
(Cro.  El.  841.)     goij^  which  is  the  fourth  part  of  a  noble,   and  that  is  twenty 
pence. 

Sect.    336. 

j^LSO,  if  a  feoffment  be  made  on  this  condition^  that  if  the  feoffee  pay 
to  the  feoffor  at  such  a  day  between  them  limited  twenty  'pounds,  then 
the  feoff ee  shall  have  the  land  (  si  feoffment  soit  fait  sur  tiel  condition, 
que  si  le  feoffee  paya  al  feoffor  a  tiel  jour  inter  eux  limit  xxl.*  adonques 
le  feoffee  aver  a  la  terre)  to  him  and  to  his  heires ;  and  if  he  faile  to  pay 
the  money  at  the  day  f  appointed,  that  then  (t  que  adonque)  it  shall  he 
lawfull  for  the  feoffor  or  his  heires  to  enter,  cj-c.  and  afterwards,  before  the 
day  appointed  the  feoffee  sell  the  land  to  another,  aiid  of  this  maketh  a 
feoffment  to  him,  in  tJiis  case  if  the  second  feoffee  ivill  teyider  the  sum  of 
money  at  the  day  appointed  to  the  feoffor,  and  the  feoffor  refuseth  the 
same,  ^c.  then  the  second  feoffee  hath  an  estate  in  the  land  clearly  without 
condition.  And  the  reason  is,  for  that  the  second  feoffee  hath  an  interest  m 
the  condition  for  the  safeguard  of  his  tenancy  (pur  salvation  de  ||  son 
tenancie.)     And  in  this  case  it  seems  that  if  the  first  feoffee  after  such 

sale 

*  que  added  in  L.  and  M.  and  |  que  added  in  Roh.  but  not  in  L. 
Roh.  and  M. 

■{"  ajjpointed — &c.  L.  and  M.  ||  son — le  L.  and  M.  and  Roh. 

(1)  See  the  account  given  in  Bla.  Com.  vol.  i.  ch.  7.  of  his  majesty's  preroga- 
tive respecting  the  coin  of  the  kingdom;  and  see  5  Mod.  7.  2  Salk.  446.  For 
the  etymology  of  the  word  Sterling,  see  Du  Gauge  and  Spelman's  Glossaries, 
under  the  word  Esterlingus',  and  Mr.  Leake's  Historical  Account  of  English 
Money,  page  20.  Guineas  took  their  name  from  the  gold  brought  from  Guinea 
by  the  African  company,  who,  as  an  encouragement  to  bring  over  gold  to  be 
coined,  were  permitted,  by  their  charter,  to  have  their  stamp  of  the  elephant 
upon  the  coin  made  of  the  African  gold.  By  a  proclamation  of  the  22d  of 
December,  1717,  the  guinea,  which  till  then  had  been  current  for  21  shillings 
and  sixpence,  was  reduced  to  21  shillings,  and  half-guineas,  double  guineas, 
and  five  pound  pieces  in  proportion. — [Note  103.] 


L.  3.  C.  5.  Sect.  336.    upon  Condition.       [207.  b.  208.  a. 

sale  of  the  land,  will  tender  the  money  at  the  day  appointed,  ^c.  to  the 
feoffor,  this  shall  be  good  enough  for  the  safeguard  of  the  estate  of  the 
second  feoffee,  hecaiise  the  first  feoffee  was  privieto  the  condition,  and  so 
the  tender  of  either  of  them  two  is  good  enough,  ^c- 


"  A  ND  ifliefaile  to  pay  the  money,  c&c.'"  12  E.  3. 

If  a  man  make  a  feoffment  of  lands,  to  have  and  to  hold  jo'^^'g 
to  him  and  his  heires,  upon  condition,  that  if  the  feoifee  pay  to  ibid.  io. 
the  feoffor,  at  such  a  day  twenty  pounds,  that  then  the  feoffee  12  Ass.  5. 
shall  have  the  lands  to  him  and  his  heires,  if  the  condition  had  I*lo^**-  ■*^1' 
not  proceeded  further,  it  had  been  void,  for  that  the  feoffee  had  (5  Rep.  117.) 
a  fee  simple  by  the  first  words,  and   therefore  the  words  sub-  Li.  5.  fo.  96,  97. 
sequent  (2)   are   materially  added  (and  if  he  faile  to  pay  the  Goodale's  case, 
money,  &c.) 

"  The  second  feoffee  will  tender  the  srim  of  money,  d:c." 
Albeit  the  second  feoffee  be  not  named  in  the  condition,  yet 
shall  he  tender  the  sum  because  he  is  privic  in  estate,  and   in 
judgment  of  law  hath  an  estate  and  interest  in  the  condition, 
(as  Littleton  here  saith)  for  the  salvation  of  his  tenancy.      Vid.  (8  Rep.  42.  b.) 
Sect.  334.     And  note,  he  that  hath  interest  in  the  condition  on  (2  Cro.  9.  245.) 
the  one  side,  or  in  the  land  on  the  other,  may  tender.  ■\vade's  case' 

[Q08.~j       And  it  is  to  be  S@*  observed  also,  that  the  feoffee 
a.      J  may  tender  any  money  that  is  currant  within  the  realme, 
albeit  it  be  forrein  coin,  so  as  it  be  currant  by  act  of 
parliament,  or  by  the  king's  proclamation  (3),  as  hath  been  said. 

"  Tender  the  sum."  The  feoffee  may  tender  the  money  in 
purses  or  bags,  without  shewing  or  telling  the  same,  for  he  doth 
that  which  he  ought,  viz.  to  bring  the  money  in  purses  or  bags, 
which  is  the  usuall  manner  to  carry  money  j^,  and  then  it 
is  the  part  of  the  party  that  is  to  receive  it  to  put  it  out  and 
tell  it. 

"  If  the  first  feoffee."  Here  it  appeareth,  that  the  first  feoffee 
may,  notwithstanding  his  feoffment,  pay  the  money  to  the  feoffor, 
because  he  is  partie  and  privie  to  the  condition,  and  by  his  ten- 
der may  save  the  estate  of  his  feoffee,  which  in  all  good  dealing 
he  ought  to  do  (1). 

Sect. 

(2)  See  note  1.  fol.  216. 

(3)  And  if,  at  the  time  of  the  feoffment,  a  purer  or  more  weighty  money 
were  current,  and,  before  the  day  of  payment,  coin  of  a  baser  alloy  is  estab- 
lished by  proclamation,  a  tender  of  the  sum  in  that  coin  is  good.  ])av.  Rep.  18. 
Mte  to'the  llth  edition. — [Note  104.] 

(1)  In  the  same  manner,  equity  permits  all  persons  to  redeem,  who  have  any 
estate  or  intereM  in  the  eqaiti/  of  redemption  of  the  morti/agor  ;  as  tenant  for  life, 
remainder-man  or  reversioner,  jointress,  tenant  by  the  curtesy,  by  elecfit,  statute 
merchant  or  staple,  tte.  All  these  may  redeem  ;  and  volunteers  are  equally 
admitted  to  redeem,  as  purchasers  for  a  valuable  consideration.  Howard  v. 
Harris,  1  Vern.  190.  2  Kq.  Cas.  Abr.  594.  The  tenant  for  life  and  jointress 
contribute  towards  the  redemption  of  the  mortgage  debt.  In  1  P.  Wms.  650, 
the  reporter  states,  that  he  mentioned  to  the  court,  that  the  life  estate,  (espe- 
cially in  the  case  where  the  tenant  for  life  had  the  remainder  in  fee,)  might  be 
valued  at  two  fifths,  which   had  been  done  in  some  cases ;  yet  the  court  said, 

how 


208.  a.]  Of  Estates         L.  3.  C.  5.  Sect.  336- 

how  equitable  soever  that  might  be,  it  was  not  the  practice,  for  which  reason  it 
would  be  dangerous,  and  create  uncertainty  to  go  out  of  the  rule ;  and  the 
register  said,  he  had  never  known  a  life  valued  at  more  than  one  third.  And 
see  ]5rend  r.  Brend,  1  Yern.  213.  Ballet?;.  Sprainger,  Pre.  Cha.  62.  James 
V.  Hailes,  ib.  44. — But  the  remainder-man  or  owner  of  the  inheritance  must 
come  in  to  redeem  in  the  life  of  the  tenant  for  life,  or  jointress ;  for  he  cannot, 
after  their  decease,  compel  a  contribution  from  their  assets.  Cornish  v.  Mew, 
1  Cha.  Ca.  271.  Howell  v.  Price,  Pre.  Cha.  423.  Hungerford  v.  Hungerford, 
Gilb.  Eq.  Rep.  G7. — In  what  cases  the  doweress  will  be  j^crmilted  to  redeem, 
is  a  question  which  involves  in  it  many  points  of  great  nicety.  The  law 
requires  a  legal  seisin  in  the  husband ;  and  it  is  a  settled  point,  that  the  wife, 
cannot  be  endowed  of  a  trust  estate.  Upon  this  principle,  it  was  generally 
understood,  that  the  wife  was  not  entitled  to  her  dower  out  of  an  estate,  which, 
at  the  time  of  her  marriage,  was  subject  to  a  mortgage  in  fee.  But  this,  per- 
haps, was  never  formally  determined,  till  the  case  of  Dixson  v.  Saville,  1  Bro. 
Cha.  Ca.  326.  But  the  case  is  diiferent  with  respect  to  mortgages  for  terms 
of  years.  It  may  be  observed  here,  1st.  That,  at  common  law,  if  a  lease  be  made 
for  a  term  of  years,  rendering  rent,  the  wife  is  entitled  to  her  dower  of  a  third 
part  of  the  reversion  by  metes  and  bounds,  and  to  a  third  part  of  the  rent;  and 
execution  will  not  cease  during  the  term.  2dly.  If  the  husband  makes  a  gift 
in  tail,  rendering  rent,  as  the  rent  is  payable  out  of,  or  in  respect  of,  an  estate 
of  inheritance,  the  wi%  will  be  endowed  of  a  third  part  of  the  rent.  Sdly.  If 
the  husband  makes  a  lease  for  life,  rendering  rent,  the  wife  is  not  entitled  to 
her  dower  of  the  rent,  because  it  is  not  payable,  in  this  case,  out  of,  or  in 
respect  of,  an  estate  of  inheritance.  4thly.  If  the  husband  makes  a  lease  for 
years,  I'eserving  no  rent,  then  judgment  will  be  given  for  the  wife,  with  a  cesset 
executio  during  the  term.  This,  if  the  term  be  of  long  duration,  deprives  her, 
virtually,  of  her  dower.  5thly.  If  a  person  purchases  an  estate  of  inheritance 
which  is  in  mortgage  for  a  term  of  years,  the  wife  of  the  vendor  will  not  be 
entitled  to  her  dower  in  equity,  if  the  term  was  created  before  the  marriage 
of  the  vendor,  and  actually  assigned  to  a  trustee  for  the  purchaser,  to  attend 
the  inheritance.  6thly.  If  a  fferson  dies  seised  in  fee,  subject  to  a  term  of  years, 
if  the  term  be  a  term  in  gross,  for  securing  the  payment  of  a  sum  of  money, 
the  widow,  by  discharging  the  money  secured  by  it,  or  paj^ing  one  third  of  the 
interest,  will  be  entitled  to  dower.  Tthly.  If  the  term  be  an  outstanding  satis- 
fied term,  she  will  also  be  entitled  to  her  dower  against  the  heir.  Ante  32.  a. 
Bro.  Abr.  Dower,  44.  60.  89.  1  Roll.  Abr.  67S.  Bodmin  and  Vandebendy, 
Shower's  Cases  in  Parliament,  69.  Brown  v.  Gibbs,  Precedents  in  Chancery, 
97.  Wray  v.  Williams,  ibid.  151.  Dudley  v.  Dudley,  ibid.  241.  Banks  v. 
Sutton,  2  P.  Wms.  700.  Hill  v.  Adams,  2  Atkyns,  208.  Arab.  6.  under  the 
name  of  Swannock  v.  Lyford. — The  last  of  these  cases  applies  particularly 
to  the  position  contained  under  the  5th  division, — that  in  the  case  of  a  pur- 
chaser, the  wife  will  not  be  relieved  in  equity  against  a  term  of  years  so  out- 
standing.— As  this  circumstance  frequently  occurs  in  practice,  and  the  general 
doctrine  of  terms  of  years,  as  they  aifect  dower,  is  very  important,  we  present 
the  reader  with  a  manuscript  note  of  lord  Hardwicke's  argument,  on  making 
his  decree  in  the  case  last  mentioned,  where  he  enters  very  largely,  and  with 
his  usual  ability,  both  on  the  general  doctrine,  and  its  application  to  the  point 
in  question. 

<'  Lord  Chancellor. — Plaintiff's  husband,  being  seised  of  a  freehold  estate, 
subject  to  a  term  of  one  thousand  years  standing  out  in  a  mortgage,  by  virtue 
of  a  mortgage  made  by  his  father,  conveys  the  inheritance  to  defendant  for  a 
valuable  consideration;  and,  at  the  time  of  this  conveyance,  defendant  takes  an 
assignment  of  the  term  in  mortgage,  in  the  names  of  trustees,  to  wait  and  attend 
upon  such  inheritance  :  and  now  the  plaintiff  brings  her  bill  against  deteudant 
the  purchaser,  for  dower,  praying  to  be  admitted  to  redeem  this  mortgage  term, 
and  to  have  it  out  of  the  way;  and,  upon  payment  of  her  proportion  of  the  mort- 
gage 


L.  3.  C.  5.  Sect.  336.        upon  Condition.  [208.  a. 

<i-age  money,  to  be  let  into  her  dower  immediately,  that  she  might  not  wait  till 
the  determination  of  the  term. — Question  is,  Whether  the  court  ought  to  de- 
cree this,  under  the  present  circumstances  of  the  case  ?    I  cannot  say  but,  that 
the  decree  already  made  at  the  rolls  for  plaintiff  the  widow,  is  absolutely  con- 
sistent with  the  mere  reason  of  the  thing,  if  it  was  not  to  be  considered  originally, 
and  settled;  but,  as  this  must  depend,  not  only  upon  the  precedents  of  the  court, 
but  the  practice    of   conveying  titles  to  estates,  upon  which  the  precedents 
themselves  were  settled,  I  do  not  wonder  that  a  decree  of  this  kind  should  be 
made  by  a  judge,  who  was  not  absolutely  conversant  in  such  precedents  of  the 
court,  and  the  distinctions  taken  therein.  But,  upon  consideration  of  them,  and 
the  great  authority  relied  upon,  of  lady  Radnor  and  Vandebendy,  Show   P.  C. 
I  am  of  opinion,  that  the  decree  ought  to  be  reversed.     And,  if  it  should  not, 
would  it  not  be  going  directly  contrary  to  that  great  authority,  and  the  reasons 
upon  which  it  is  founded,  and  make  such  uncertainty  in  this  court  in  regard  to 
purchases,  that  the  subject  would  not  know  what  to  rely  upon  ? — The  wife  here 
claims  her  dower,  subject  to  a  term  originally  standing  out  in  a  mortgage.    The 
consequence  of  that  is,  that,  in  law,  though  she  might  have  brought  her  writ  of 
dower,  and  recovered  judgment,  yet  she  could  not  have  had  the  benefit  of  it,  till 
after  the  determination  of  the  term;  for  the  judgment  would  be,  with  a  cessct 
executio  till  that  time.     This  was  the  wife's  legal  remedy;  and,  that  being  so, 
she  comes  into  this  court  upon  the  foundation  of  her  general  right  of  dower,  to 
be  delivered  from  that  restriction  which  the  law  imposes  upon  her,  from  having 
the  benefit  of  it,  till  such  determination  of  the  term,-  and  to  be  admitted  to 
redeem  this  term,  which  is  now  not  in  the  hands  of  the  mortgagee,  but  of  the 
purchaser,  as  being  assigned  to  attend  upon  the  inheritance,  and  for  the  other 
purposes  before  mentioned :  and,  though  the  assignment  is  not  in  the  words 
"to  protect  the  inheritance  from  dower,  or  mesne   incumbrances,"  yet  it  is 
always  so  understood  :  otherwise  there  would  be  no  use  in  taking  the  term  in  the 
name  of  a  trustee. — It  is  admitted  by  the  defendant,  in  case  things  had  stood  as 
they  were  at  the  time  of  the  marriage,  viz.  that  the  term  had  been  in  the  mort- 
gagee, and  the  inheritance  in  the  husband,  as  heir,  or  purchased  from  him  by 
the  purchaser  without  an  assignment  of  the  term,  as  here,  the  wife,  as  entitled  to 
dower,  might  then  have  come  here  to  redeem  the  mortgage,  to  have  the  benefit 
of  coming  at  her  dower  immediately,  by  paying  ofi"  the  mortgage  money,  or  keep- 
ing down  the  interest  for  the  benefit  of  the  heir  or  purchaser.     And  even  this 
was,  (when  originally  settled)  going  a  good  way  in  favour  of  a  dowress,  though 
it  was  consistent  with  the  reason  of  the  thing;  for,  as  she  was  entitled  to  dower, 
and  as  a  mortgage  is  only  a  redeemable  interest,  it  is  fit  the  equity  of  redemption 
should  follow  the  nature  of  the  interest  in  the  estate ;  and  she  to  be  endowed, 
and  the  heir  at  law  to  be  entitled  to  the  inheritance  subject  to  such  dower,  was 
giving  the  wife  a  real  benefit  arising  from  her  dower,  and  not  a  mere  nominal 
one,  as  it  would  be  at  law,  where  there  is  an  outstanding  term;  for,  when  the 
law  says,  she  shall  have  judgment  for  dower,  but  with  a  ccsset  exeaitio  till  the 
determination  of  the  term,  that  is  in  fact  to  say,  she  shall  have  no  dower,  and 
therefore  this  court,  as  against  the  heir,  but  not  the  purchaser  of  the  term  and 
inheritance,  gives  her  the  benefit  of  her  dower,  by  removing  the  term.   ^  And,  if 
all  the  cases  of  tenancy  in  dower  and  curtesy  likewise  were  now  originally  to 
be  considered,  it  might  as  well  be  left  upon  the  strength  of  the  law,  for  it  is 
undoubtedly  a  mere  legal  title  that  the  one  has,  as  well  as  the  other;  and  there 
is  no  contract  of  the  party's  intervening.     Therefore,  if  a  woman  marries,  and 
the  husband  is  in  possession  of  an  estate,  or,  if  a  man  marries,  and  the  woman 
is  in  possession  of  an  estate,  each  party  knows  that,  at  the  time  of  the  marriage, 
their  estates  are  liable  and  subject,  on  the  one  side,  to  a  tenancy  by  the  curtesy, 
and,  on  the  other,  to  dower,  and  to  all  mesne  incumbrances  and  terms ;  and 
there  is  no  harm  to  say,  that  both  shall  take  their  chance.    The  commiseration, 
in  respect  to  dower,  has  arisen  from  the  determinations  in  favour  of  tenancy 
by  the  curtesy;  and  indeed,  the  distinction  made  between  dower  and  tenancy  by 

curtesy 


208.  a.J  Of  Estates         L.  3.  C.  5.  Sect.  336. 

curtesy  is  founded  upon  very  slight  reasons;  but,  however,  it  has  been  so  esta- 
blished. The  great  poiut,  in  this  case,  depends  upon  the  determination  in  the  case 
of  lady  Radnor  and  Vandebendy,  in  Show.  P.  C.  and  Preced.  Chan,  and  that  was 
thus:  (I  mention  it  from  lord  Somers's  own  notes) — It  was  sent  to  the  master, 
in  order  to  state  the  case,  who  stated  it : — That,  Charles  earl  of  Warwick,  upon 
the  marriage  of  his  son,  settled  his  estate,  as  to  part,  in  jointure  to  his  lady,  and 
part,  upon  the  son  in  tail,  and  part,  upon  himself  in  tail ;  and,  upon  failure  of 
issue  male,  then  to  trustees  for  99  years,  to  be  disposed  of  by  the  said  earl,  either 
by  deed  or  will,  and,  for  waut  of  such  appointment,  the  term  was  declared  to  be 
for  the  next  in  remainder,  and  to  be  attendant  upon  the  inheritance;  and,  as  to 
a  third  part  of  a  moiety  of  the  estate,  it  was  limited  to  lord  Bodmyn  in  tail. 
The  son  died  without  issue;  and  then  the   earl,  according  to  his  power  of 
appointment,  charges  the  estate  with  some  annuities,  some  of  which  were  deter- 
mined at  the  time  of  the  purchase  in  question,  and  some  were  continuing;  and 
then  the  trust  term,  which  was  merely  such,  was  to  be  attendant  upon  the  inhe- 
ritance.    Vandebendy  purchases  of  lord  Bodmyn,  plaintiff's  husband,  that  part 
of  the  estate  limited  to  him;  and  took,  not  only  a  conveyance,  but  a  recogni- 
zance in  two  statutes,  in  very  considerable  sums,  to  indemnify  the  estate  from 
incumbrances,  and  against  the  wife's  dower,  and  for  suffering  a  recovery,  and 
took  an  assignment  of  the  term.     Vandebendy  afterwards  conveys  to  Sir  John 
Rotheram,  which  occasioned  it  to  be  called  in  Preced.  Chanc.  65.  by  the  name 
of  lady  Radnor  v.  Rotheram. — Lady  Radnor  brought  a  bill  to  have  the  benefit 
of  dower  against  Vandebendy,  (who  purchased  of  lord  Bodmyn  her  husband,) 
and  to  set  this  term  out  of  the  way;  and,  by  the  decree  before  made,  lord  Jefferys 
inclined  to  give  relief,  and  did  set  the  term  out  of  the  way,  and  direct  she  should 
bring  dower  at  law;  but  lord  Somers  reversed  that  decree;  and,  upon  appeal  to 
the  house  of  lords  the  reversal  was  afl5rmed.     There  was  great  doubt  in  this 
court,  and  so  in  the  house  of  lords;  and  there  was  a  great  inclination  in  the 
house  to  reverse  that  decree  of  lord  Somers;  but,  when  the  counsel  came  to  the 
bar,  the  lords  asked.  Whether  it  was  usual  for  conveyancers  to  convey  terms  for 
years  to  attend  the  inheritance,  to  prevent  dower?  and  the  counsel,  with  great 
candor,  saying  it  was,  the  lords  affirmed  lord  Somers's  decree.     The  point  that 
weif'hed  in  the  judgment  was,  that  this  was  the  case  of  a  purchase  for  a  valuable 
consideration;  that,  in  making  conveyances,  purchasers  relied  upon  that  method 
of  taking  a  conveyance  of  the  inheritance  to  themselves,  and  an  assignment  of 
the  term°standing  out  to  a  trustee,  to  attend  it ;  that  the  outstanding  term  was 
prior  to  the  title  of  dower  in  the  wife,  aAd,  therefore,  purchasers  have  relied 
upon  that,  as  a  bar  to  such  dower;  so  that  this  court  and  house  of  lords  were 
of  opinion,  that,  if  they  were  not  to  permit  that  to  be  so,  it  would  be  to  over- 
turn the  general  rule,  which  had  been  established  and  practised  by  many  titles 
to  estates,  and  tend  to  make  such  titles  precarious  for  the  future.     And,  as  to 
what  was  said  in  the  case  of  Brown  and  Gibbs,  Preced.  Chanc.  97.  viz.  that, 
though  there  was  a  purchaser,  in  the  case  of  lord  Radnor  and  Vandebendy, 
yet,  that  the  court  did  not  go  upon  that  reasdn. — I  do  not  know  who  reported 
that  to  be  the  saying  of  the  court ;  but  this  I  know,  that  that  was  the  only  reason 
for  the  determination  there;  and  that  is  plain,  for  Vandebendy,  the  purchaser, 
having  purchased  for  a  valuable  consideration,  lord  Somers  did  rely  upon  that 
oreatiy;  for  he  said,  it  has  been  always  looked  upon,  that  a  term,  purchased  in 
by  such  a  person  to  protect  the  inheritance  against  dower,  &c.  has  been  suffi- 
cient for  that  purpose ;  and  therefore,  it  would  not  only  be  a  new  thing  to 
determine  it  should  not,  but  of  very  great  consequence,  and  greater  than  what 
appears  at  first  view,  besides  what  has  been  already  mentioned,  and  especially, 
since  practitioners  have  all  along  advised  this  method,  whereby  many  persons 
have  been  purchasers  in  that  way;  and  there  cannot  be  a  stronger  argument 
against  altering  this  method  by  any  determination,  than  to  say,  it  was  never 
done :  but  the  argument  by  the  counsel  was  of  another  nature;  for  they  said, 
that  judgment  had  been  given  for  dower  in  all  ages,  and,  in  the  case  of  a  term. 


L.  3.  C.  5.  Sect.  336.  upon  Condition.  [208.  a. 

as  in  the  present  case,  she  might  come  into  this  court,  to  have  the  benefit  of  her 
dower,  notwithstanding  such  term.  Ever  since  this  case,  it  has  always  been 
said  that  the  court  is  bound  by  it;  and,  on  the  other  hand,  I  have  heard  it  often 
said  by  the  court,  that  they  will  go  no  farther.  And  therefore,  to  have  the 
benefit  of  a  determination,  every  person's  case  must  be  exactly  and  strictly  the 
same  with  that.  I  am  of  the  same  opinion  too,  and  will  not  go  any  farther  than 
that  case  does.  So  that,  then  the  question  comes  to  be  this,  Whether  there  is 
any  distinction  between  this  case  and  that?  It  is  said,  that,  there  the  purchaser 
was  allowed  to  protect  himself,  by  taking  in  the  term  attendant  upon  the  inhe- 
ritance, because  that  was  a  satisfied  term,  which,  in  the  consideration  of  this 
court,  was  become  part  of  the  fee;  that  he  purchased  the  whole  estate  of  the 
husband,  and,  therefore,  an  old  term,  such  as  that  was,  has  been  allowed  to  be 
so  assigned,  to  protect  the  inheritance  ;  but  that,  in  this  case,  the  husband  had 
nothing  in  the  term,  because  he  was  owner  of  the  inheritance  subject  to  it,  and 
of  the  equity  of  redemption  of  it;  and,  for  that,  at  the  time  of  the  purchase, 
the  term  was  in  mortgage,  and  standing  out,  and  the  money  advanced  still  due 
upon  it,  that  it  was  a  security  separate  from  the  husband's  inheritance,  and  the 
purchaser  took  it  from  the  mortgagee  only  and  not  from  the  husband.  But,  I 
think,  that  makes  no  difi'erence  here  from  that  of  Vandebendy.  If  there  is  any 
difference,  it  is  against  the  plaintiff,  and  makes  the  case  much  stronger  in  favour 
of  the  present  purchaser.  It  is  difficult  to  say,  upon  the  state  of  the  case,  that 
the  term  there  was  a  satisfied  term  at  the  time  of  the  purchase.  I  rather  think  it 
was-not;  for  lord  Somers  states  it,  that  the  earl  of  Warwick,  who  had  the  power 
of  appointing  the  trust  term,  did  appoint  it,  by  charging  it  with  some  annuities, 
which  were  to  commence  a  year  after,  and  that  some  of  them  were  continuing, 
and  some  of  them  determined,  and,  I  think,  after  the  purchase  made  ;  and,  if 
that  was  so,  this  was  not  a  satisfied  term,  but  still  subsisting  to  pay  those  annui- 
ties, which  were  incumbrances  continuing  upon  the  terms ;  so  that  Vandebendy, 
who  took  the  assignment  of  the  term,  took  it  subject  to  the  trust  so  continuing 
on  it,  in  like  manner  as  the  purchaser  here  took  the  term,  subject  to  the  mort- 
gage, and  the  money  due  thereon.  Therefore,  the  distinction  endeavoured  to 
be  made  between  the  case  there  being  a  satisfied  term,  and  this  being  a  mort- 
gage term,  not  satisfied,  fiuls.  But,  supposing  that  term  had  been  satisfied,  how 
would  that  make  any  difference?  It  is  true,  that  would  then  have  been  a  trust 
for  the  husband,  and  his  heirs,  and  he  would  have  it  as  part  of  his  ownership  and 
dominion  over  the  estate;  and,  consequently,  it  would  be  subject  to  dower,  as 
against  the  husband.  For,  if  the  husband  dies,  and  there  is  a  satisfied  term  con- 
tinuing, the  wife  would  be  entitled  to  come  into  this  court,  against  the  heir,  to  set 
that  term  out  of  the  way,  in  order  to  have  the  benefit  of  her  dower;  and  that  is 
expressly  so  said  in  the  case  of  Banks  and  Sutton,  2  Wms.  700.  by  the  master 
of  the  rolls,  and  he  cites  a  case  to  that  purpose :  and  undoubtedly  she  would, 
without  paying  any  thing.  And  if,  in  the  present  case,  the  husband  had  made  no 
conveyance  to  the  purchaser,  and  the  mortgage  had  continued  in  the  mortgagee, 
or  his  assignee,  and  the  equity  of  redemption  had  descended  on  the  heir,  she 
would  have  been  entitled  likewise  to  dower  against  him,  by  redeeming  the  term, 
and  paying  her  proportion  of  the  mortgage  money,  or  by  keeping  down  the 
interest.  But,  if  a  term  for  years  is  in  mortgage,  and  a  person  purchases  the 
inheritance  of  the  husband,  and  takes  an  assignment  of  the  term  from  the  mort- 
gagee, by  paying  off  the  money,  not  only  to  have  the  trust  of  the  term  as  a  se- 
curity, but  to  protect  the  inheritance  so  purchased,  would  it  not  be  hard  to  take 
away  the  benefit  of  it  from  him  ?  Shall  it  be  said,  that  he  shall  have  a  less 
inheritance  by  taking  in  a  mortgage  term  in  that  manner,  by  actually  paying  off 
the  mortgage  money,  than  if  he  had  taken  an  old  satisfied  term,  for  which  he 
never  paid  any  thing  ?  Therefore,  if  the  term,  in  lady  Radnor's  case,  had  been 
a  satisfied  one,  that  would  have  been  so  far  from  distinguishing  that  case  from 
this  in  favour  of  the  plaintiff,  that  it  would  have  been  rather  stronger  in  favour 
of  the  purchaser;  for  here,  he  paid  a  consideration  for  the  outstanding  term, 

and 


208.  a.]  Of  Estates  L.  3.  C.  5.  Sect.  336. 

and  there,  nothing  would  have  been  paid  for  such  said  satisfied  term.  But,  it  is 
said  that  this  purchase  of  the  mortgage  was  from  the  mortgagee,  and  not  from 
the  husband.  If  that  was  so,  I  do  not  know  that  this  would  make  any  difference, 
because  the  husband  here  joined  in  the  assignment  of  the  mortgage.  But,  what 
results  from  this  case  is,  that,  it  was  part  of  the  agreement  of  all  the  parties, 
(the  husband  joining)  that  the  term  should  be  purchased  in,  by  the  purchaser 
of  the  estate,  to  attend  his  inheritance ;  and  that  is  the  very  trust  declared  by 
the  deed.  It  has  been  admitted  here,  that,  if  the  husband  had  paid  off  the 
mortgage  himself,  after  the  coverture,  and  taken  an  assignment  of  the  term  in 
mortgage,  in  trust  for  him  and  his  heirs,  to  attend  the  inheritance,  (in  which 
case  it  would  have  then  become  a  satisfied  term;)  and,  after  this,  a  purchaser 
had  purchased  from  him,  and  paid  him  the  whole  money,  and  taken  a  convey- 
ance of  the  inheritance  from  him,  and  an  assignment  of  the  term  from  the 
trustees,  that  would  have  been  very  well,  and  within  the  case  directly  of  lady 
lladnor.  What  is  the  difference,  then,  in  the  reason  of  the  thing,  whether  the 
husband  pays  off  the  mortgage  himself,  and  takes  an  assignment  of  the  term,  in 
trust  for  himself  and  his  heirs,  and  then  sells  to  a  purchaser  the  inheritance, 
who  takes  the  term  from  the  trustee ;  or,  whether  the  purchaser  comes,  and  pur- 
chases the  inheritance  from  the  husband,  and  pays  off  the  mortgage,  and  takes 
an  assignment  of  the  term  himself?  Is  the  case  the  less  strong  for  that?  It  is 
rather  stronger. — It  is  admitted  that,  if  this  had  been  an  old  satisfied  term,  stand- 
ing out  attendant  upon  the  inheritance,  and  a  purchaser  had  purchased  from  the 
husband,  and  had  taken  in  this  term,  that  would  have  protected  the  inheritance. 
That,  if  a  man,  before  marriage,  conveys  his  estate  privately,  without  the  know- 
ledge of  his  wife,  to  trustees,  in  trust  for  himself  and  his  heirs  in  fee,  that  will 
prevent  dower.  So,  if  a  man  purchases  an  estate  after  coverture,  and  takes  a 
conveyance  to  trustees,  in  trust  for  himself  and  his  heirs,  that  will  put  an  end 
to  dower:  so,  if  he  takes  an  estate  in  jointenancy,  or  a  conveyance  to  himself, 
for  a  long  term  of  years.  But,  it  is  objected,  that  the  act  done  here  by  the 
purchaser,  at  the  time  of  his  purchase,  he  having  notice  of  the  marriage,  will 
put  the  wife  in  a  worse  condition  than  she  would  have  been  in  originally,  if  the 
purchaser  had  not  intervened;  since  then,  there  would  have  been  a  redeemable 
mortgage,  (the  equity  of  redemption  being  in  the  husband,)  and  the  husband 
dying,  she  would  be  entitled  to  redeem  such  mortgage,  and  then,  to  have  had 
dower;  and  therefore,  by  the  purchaser's  knowing  of  the  title  of  dower,  by 
reason  of  the  marriage,  he  would  have  put  her  in  a  worse  condition,  which  in 
equity  he  ought  not  to  have  done ;  and  this  ought  not  to  alter  her  right.  But 
this  does  not  differ  from  the  common  case.  For,  in  this  case,  suppose  the  hus- 
band had,  before  the  purchase,  redeemed  the  mortgage,  and  taken  an  assignment 
of  the  mortgage  term,  in  trust  for  himself  and  his  heirs,  to  attend  the  inheri- 
tance, and,  after  that,  the  purchaser  had  purchased  from  him,  and  taken  an 
assignment  of  such  attendant  term,  in  trust  for  him  and  his  heirs,  would  not  that 
have  altered  the  wife's  right  to  dower,  though  without  that  intervention  of  the 
purchaser?  She  would  be  entitled  to  her  dower,  as  against  the  heir;  so  like- 
wise, in  the  case  of  an  old  term  attending  upon  the  inheritance  in  trust ;  but 
this  purchase  prevents  the  descent  of  the  estate  to  the  heir,  and  therefore  it  is 
not  to  be  said,  that  the  purchasers  have  put  the  wife  in  a  worse  condition,  by 
the  intervention  of  their  purchase  :  but,  because  conveyancers  did  rely  upon 
the  assignment  of  the  term  to  trustees  to  protect  the  inheritance,  as  sufficient 
for  that  purpose,  it  was  determined  as  has  been  mentioned;  and  I  do  not  see 
how  the  present  case  can  differ  from  that  of  an  old  term  to  attend  the  inheri- 
tance. But  the  present  point  is,  that  here  the  term  was  in  the  mortgagee, 
and  the  inheritance  in  the  husband.  The  term  will  stand  in  the  way  of  dower 
at  law,  and  the  purchaser  comes  in  upon  that  foot,  pays  his  money,  and  relies 
upon  that  term  to  protect  his  purchase;  and  therefore,  I  think,  this  is  strictly 
within  the  reason  of  the  case  of  lady  lladnor  and  Vandebendy,  and  all  the 
other  cases  grounded  upon  it.     Another  distinction  made  is,  that  here  is  an 

express 


L.  3.  C.  5.  Sect.  336.         upon   Condition.         [208.  a. 

express  covenant  taken  from  the  husband  against  the  dower  of  his  wife  ;  for 
the  covenant  is,  that  the  purchaser  should  enjoy  the  estate  free  from  incum- 
brances, &c.  and  from  all  dowers,  &c.  and  particularly  the  dower  of  the  plain- 
tiff; and  then  there  is  a  covenant  for  further  assurance  :  and,  that  this  shows, 
that  the  purchaser  relied  upon  this  covenant  as  his  security  to  indemnify  him 
against  dower;  and,  that  it  is  plain,  without  question,  this  is  notice  of  the 
dower.  A  man  may  reasonably  take  a  covenant  against  such  right  of  dower, 
and  yet  rely  upon  the  security  of  the  trust  term  besides,  and  may  take  such 
covenant  against  any  damages,  in  respect  to  any  suits  by  the  wife  for  dower. 
The  purchaser  did  not  purchase  here  subject  to  his  wife's  dower,  for  he  paid 
a  price  for  the  estate  exclusive  of  it.  If  the  estate  in  his  hands  had  been  subject 
to  the  dower,  then  the  covenant  against  it  of  the  husband's  would  not  have 
signified.  But,  however,  be  that  as  it  will,  it  is  similar  to  that  of  Vandcbendy; 
for  there,  the  purchaser  took  two  statutes,  (with  defeasance,)  to  indemnify  the 
estate  from  incumbrances,  and  the  wife's  dower,  and  to  suffer  a  recovery ;  and 
it  was  insisted  upon  there,  by  the  counsel,  as  is  here ;  but  lord  Somers  said, 
though  a  man  does  take  such  security,  which  he  does  to  prevent  any  damages 
that  may  arise,  yet  that  does  not  preclude  him  from  any  favour  he  is  entitled 
to.  Another  consideration  in  this  case  is,  length  of  time ;  for  the  purchase 
was  made  in  1711.  The  husband  died  in  1719,  and  the  plaintiff,  the  widow, 
never  brought  dower,  or  the  present  bill,  till  1737  ;  and  it  appears,  that  de- 
fendant, the  purchaser,  has  since  made  great  improvement  upon  the  estate, 
and  therefore  it  would  be  very  hard,  especially  after  the  several  cases  deter- 
mined in  favour  of  purchasers,  even  if  there  was  a  hair's  breadth  of  a  distinc- 
tion between  this  case  and  that  of  lady  Radnor  and  Vandebcndy,  to  suffer  the 
plaintiff  now  to  come  here  for  dower.  It  is  said,  about  10  years  ago  plaintiff 
did  claim  her  dower  of  the  present  defendant,  which  amounted  to  notice  to 
him  of  such  dower,  (which  he  did  not  want.)  But,  however,  the  making  a 
claim,  and  then  not  proceeding  directly  upon  it,  shows,  that  plaintiff  was 
conusant  of  her  right,  but  would  not  proceed ;  and  the  purchaser  must  think, 
by  her  delaying  so  to  do,  that  she  would  not,  and  that  might  bean  inducement 
for  him  to  make  such  improvements  as  he  has  done.  Therefore,  upon  the 
whole,  I  think  the  decree  ought  to  be  reversed,  and  the  bill  to  be  dismissed ; 
but  I  will  not  give  costs." 

In  the  above  case.  Chute,  Clarke,  and  Weldon,  for  plaintiff,  cited  xlttorney- 
general  and  Scot,  lord  Talbot's  time.  See  Lady  Radnor  and  Vandebcndy, 
Show.  P.  C.  69.     Preced.  Chanc.  65.  97.  133.  2  Wms.  632. 

Attorney-general,  Brown,  Grapper,and  Murray,  contra,  cited  the  above  ca- 
ses, and  Mitchell  and  Reynolds,  at  the  Rolls,  1730.  "  Bill  was  brought  for 
dower,  and  case  was,  the  husband  in  1710,  had  made  a  mortgage  for  500^., 
for  the  term  of  1,000  years,  which  was  assigned  to  ,/.  S.  after  the  marriage  of 
plaintiff,  to  secure  a  further  sum.  The  husband  mortgages  another  estate  in 
fee,  and  both  these  mortgages  were  assigned  to  defendant;  and,  in  1725,  de- 
fendant came  to  an  account  with  the  husband,  and  likewise  came  to  au  agree- 
ment with  him  for  the  purchase  of  the  estate,  for  the  mortgage  sum  only. 
Accordingly,  the  husband  conveyed  the  equity  of  redemption.  One  question 
arose,  relating  to  the  estate  mortgaged  in  fee ;  and  another,  in  respect  to  the 
mortgage  for  years.  And  as  to  the  mortgage  for  years,  the  master  of  the  rolls 
said,  the  doweress  should  have  dower  out  a  term  for  years,  where  the  inhe- 
ritance was  in  the  husband,  as  against  the  heir  of  the  husband,  or  against  a 
volunteer ;  but  it  is  settled  that  she  shall  not  as  against  a  purchaser  for  a 
valuable  consideraiion :  and  cited  the  case  of  lady  Radnor  and  Vandebcndy. 
And  he  said  likewise  what  was  mentioned  before,  in  the  principal  case,  relating 
to  the  method  of  conveyances;  but  that  he  could  not  look  upon  defendant  here 
as  a  purchaser,  because  he  could  not  look  upon  the  method  here  taken  between 
him  and  the  husband  as  a  purchase,  the  agreement  for  the  purchase  being  for  the 

mortgage 


208.  a.J  Of  Estates        L,  3.  C.  5.  Sect.  337. 


Sect.  337. 

ALSO,  if  a  feoffment  he  made  upon  condition,  that  if  the  feoffer  jjay 
a  certaine  sum  of  money  to  the  feoffee,  then  it  shall  be  lawfull  to 
the  feoffor  and  his  heires  to  enter*;  in  this  case  if  the  feoffor  die  before 
the  payment  made,  and  the  heir  will  tender  to  the  feoffee  the  money,  such 
tender  is  void,  because  the  time  within  U'hich  this  ought  to  be  done  is  past. 
For  when  the  condition  is,  that  if  the  feoffor  pay  the  money  to  the  feoffee 
^c.  this  is  as  much  to  say,  as  if  the  feoffor  during  his  life  pay  the  money 
to  the  feoffee,  ^c.  and  when  the  feoffor  dyeth,  then  the  time  of  the  tender 
is  past.  But  otherivise  it  is  ivhere  a  day  of  payment  is  limited,  and  the 
feoffor  die  before  the  day,  then  may  the  heir  tender  the  money  as  is  afore- 
said, for  that  the  time  of  the  tender  was  not  past  by  the  death  of  the 
feoffor.  Also  it  seemeth,  that  in  such  case  (|  que  en  tiel  case)  where  the 
feoffor  dieth  before  the  day  ofpiayment,  if  the  executors  of  the  feoffor  tender 
the  money  to  the  feoffee  at  the  day  of  payment,  this  tender  is  good  enough  ; 
and  if  the  feoffee  refuse  it,  the  heires  of  the  feoffor  may  enter  {ei  si  le 
feoftee  ceo  refuse,  f  les  heires  de  feoflfor  poient  entrer),  ^-c.  And  the 
reason  is,  for  that  the  executors  represent  the  person  of  their  testator^ 
ic.  (1). 

THIS 

*  &c.  added  in  L.  and  M.  and  Roh.       f  donques  added  in  L.  and  M.  and 
t  que  not  in  L.  and  M.  or  Roh.  Roh. 


mortgage  money  only ;  therefore  relieved  tlie  widow.  But  said,  that  he  would 
not  relieve  her  as  against  a  purchaser." 

In  the  late  case  of  3Iaundrell  v.  Maundrell,  7  Yes.  jun.  567.  and  10  Ves. 
jun.  246.  the  doctrine,  which  is  the  subject  of  this  note,  received  a  full  inves- 
tigation.— [Note  105.] 

(1)  The  following  succinct  observations, — 1st.  On  the  right  of  the  executor 
to  receive  the  mortgage  debt ;  2dly.  On  the  application  of  his  personal  estate 
in  discharge  of  mortg^ige  debts :  3rdly.  On  limiting  the  right  of  redemption 
to  persons  not  entitled  to  the  ownership  of  the  laud,  when  the  mortgage  is 
executed  :  and  4thly.  On  the  length  of  possession  by  a  mortgagee,  which  bars 
the  mortgagor's  right  of  redempUon, — may,  perhaps,  without  impropriety,  be 
inserted  in  this  place. 

1st.  It  has  been  long  settled  in  equity,  that  mortgage  money  in  to  he  paid,  not 
to  the  heir,  hut  to  the  executor :  and  this  holds,  though  the  mortgage  be  in  fee ; 
though  the  condition  be  for  payment  to  the  mortgagee,  his  heirs  or  executors; 
though  there  be  no  want  of  assets  ;  though  there  be  no  bond  given,  or  covenant 
entered  into  by  the  mortgagor,  for  payment  of  the  money;  and,  whether  the 
mortgage  be  forfeited  or  not,  at  the  death  of  the  mortgagee  :  for  equity  considers 
a  mortgage  as  part  of  the  mortgagee's  personalty.  See  the  argument  of  lord 
keeper^Fmch  in  Thorubrough  v.  Baker,  I  Cha.  Ca.  285.  and  see  2  Cha.  Ca.50, 
51.  187.  224.  2  Vent.  348.  351.— This  follows  from  the  principle,  which  has 
been  already  noticed,  that,  in  equity,  the  lands  are  only  considered  as  a  pledge 
or  security  for  the  money  lent,  and  the  money  is  the  principal,  if  not  the  sole 
object.  In  adopting  this  rule,  courts  of  equity  appear  to  have  been  guided  by 
the  same  reasoning,  which  in  former  times  made  courts  of  law  consider  the 
estates  of  tenant  by  statute  merchant  and   tenant   by  statue   staple  merely  as 

chattel 


L.  3.  C.  5.  Sect.  337.     upon  Condition,  [208.  a. 

chattel  interests.  These,  from  their  uucertain  nature,  ought  to  have  been  con- 
sidered as  freehold;  but  being,  as  Mr.  justice  Blackstone  observes,  a  security 
and  remedy  provided  for  personal  debts,  to  which  debts  the  executor  is  entitled, 
the  law  has  therefore  thus  directed  their  succession;  as  judging  it  reasonable, 
from  a  principle  of  natural  equity,  that  the  security  and  remedy  should  be 
vested  in  them,  to  whom  the  debts,  if  recovered,  would  belong.  2  131.  Com.  ch. 
10.  sect.  5.  Still  however  the  mortgage  is  considered  as  forfeited  in  law,  and 
the  mortgagor  can  only  recover  the  mortgaged  lands  back,  by  the  aid. of  equity. 

2dly.  It  also  follows,  from  the  circumstance  of  the  mortgaged  lands  being 
considered,  in  equity,  as  a  security  or  pledge  for  the  mortgage  debt,  that,  after 
the  legal  forfeiture,  it  continues  as  much  a  debt  as  before:  Hence,  in  r/eneral, 
the  personal  estate  of  the  morttjagor  is,  upon  his  decease,  to  be  applied  in  dis- 
charge of  the  mortgage:  and  this  holds  equally  in  favour  of  the  heir;  of  a  gene- 
ral devisee,  or  hsercs  factus ;  and  of  a  devisee  of  particular  lands;  and  whether 
there  is,  or  is  not,  a  bond  or  covenant  for  payment  of  the  money.  Cope  v.  Cope, 
1  Salk.  450.  Howell  v.  Price,  Free,  in  Cha.*423.  Pockley  v.  Pockley,  1  Vern. 
36.  Lord  Winchelsea  v.  Norclilf,  1  Vern.  403,  Bartholomew  v.  May,  1  Atk. 
487.  Galton  v.  Hancock,  2  Atk.  424.  427.  430.  This  doctrine  has  been  fre- 
quently extended  to  the  case  of  a  devise  of  lands  in  trust,  to  pay  oif  debts; 
where  (particularly  if  the  personalty  is  bequeathed  to  the  executor)  the  courts, 
notwithstanding  an  express  devise  of  a  real  estate  for  the  payment  of  debts, 
have  directed  the  personalty  to  be  first  applied  in  payment  of  them.  See  Gower 
V.  Mead,  Prec.  in  Cha.  2.  Dolman  v.  Smith,  ibid.  456.  2  Vern.  740.  Hall  v. 
Brooker,  Gilb.  Rep.  72.  See  also  Balnfield  v.  Wyndham,  Prec.  in  Cha.  101. 
Wainwright  v.  Bendloe,  Gilb.  Rep.  125.  Stapleton  v.  Colville,  Ca.  temp. 
Talbot,  202. — In  some  cases,  however,  the  courts  have  considered  the  land  as  the 
pr imary  funxl ,  and  the  personalti/  merely  as  auxiliary.  The  personal  estate 
is  then  only  a  surety  for  the  laud,  and  will  have  the  same  equity  as  the  land  is 
entitled  to,  when  it  is  pledged  as  a  surety  for  a  personal  debt.  This  doctrine  is 
most  pointedly  and  happily  stated,  explained,  and  exemplified  by  Mr.  Cox  in 
his  note  under  page  664  of  the  second  volume  of  his  edition  of  Peere  Williams. 
— The  cases  chiefly  occur,  where  a  person  purchases  an  estate,  subject  to  a  sum 
of  money,  which  he  does  not  discharge,  or  leaves  part  of  the  purchase  money 
secured  on  the  estate.  Speaking  generall}',  in  these  cases,  as  between  the  real 
and  personal  representatives  of  the  purchaser,  the  land  is  the  primary  fund  for 
the  payment  of  such  money :  but  the  purchaser  may  arrange  this  at  his  plea- 
sure. To  prevent  doubt  on  the  subject,  it  is  advisable  to  insert  a  clause  in  the 
purchase  deed,  expressing  the  purchaser's  iutention  in  this  respect. 

odly.  It  sometimes  happens,  that  by  the  language  of  the  proviso  for  redemp- 
tion, the  right  to  redeem  is  limited  to  a  person,  who  had  either  no  interest,  or 
a  partial  interest  only,  in  the  land,  at  the  time  of  the  mortgage;  and  that,  from 
the  circumstance,  it  becomes  doubtful,  irhcther  the  person,  to  whom  the  equity 
of  redemption  is  thus  limited,  does  not  acquire,  under  the  limitnlion,  the  bene- 
ficial ownership  of  th'  equity  of  redemjition ;  or,  at  least,  a  greater  interest  in 
it  than  he  had  in  the  land  before  the  mortgage.  Speaking  generally,  a  strong 
indication  of  intention  is  necessary,  to  transfer  the  beneficial  ownership  of  the 
equity  of  redemption,  from  the  person  entitled  to  the  beneficial  ownership  of  the 
estate  at  the  time  of  the  mortgage,  or  to  vary  his  rights;  when  this  is  intended, 
a  full  i-ecital  of  the  intention  should  be  inserted. — In  the  same  manner,  when 
money  is  raised  by  mortgage  for  the  benefit  of  a  person,  having  a  partial  in- 
terest in  the  land,  as  where  the  husband  and  wife  join  in  a  mortgage  of  her 
estate,  and  the  money  is  paid  to  him,  or  where  the  tenant  for  life  and  the  re- 
versioner join  in  a  mortgage,  and  the  money  is  paid  to  the  tenant  for  life,  it 
should  be  stated,  whether  it  be  the  intention  of  the  parties,  that,  as  between 
the  estate  and  the  person  receiving  the  money,  the  estate  or  the  person  receiv- 
ing the  money  is   to  be  debtor  for  it,  and  indemnify  the  other. — But  this  is 

unnecessary, 


208.  a.  208.  b.J  Of  Estates    L.  3.  C.  5.  Sect.  337. 

[a]  14  II.  7.  31.  ^pHIS  diversitie  is  plain  and  evident,  and  agreeth  witli  [a] 

15  H.  7.  1.  J-    our  books,  and  yet  somewhat  shall  be  observed  hereupon : 

P  °t'  si'o  ^^■''  ^^^^^  '^^  appeareth,  that  seeing  no  time  is  limited,  the  law 

2  Cro.  244.)'  doth  appoint  the  time,  and  that  is  during  the  life  of  the  feoffor. 

(2  Co.  70.)  Wherein  divers  diversities  are  worthy  the  observation : 

First,  between  this  case  that  Littleton  here  putteth  of  the  1 

condition  of  a  feoffment  in  fee,  for  the  payment  of  money  where 

44  E.  .3.  9.  no  time  is  limited,  and  the  condition  of  a  bond  for  the  pay- 

33  H.  6.  45.  ment  of  a  sum  of  money  where  no  time  is  limited  :  for  in  such 

4  E^4^  ''g  *  condition  of  a  bond  the  money  is  to  be  payd  presently,  that 

9  e!  4!  22.  is,  in  convenient  time.     \U\  And  yet  in  case  of  a  condition  of 
15  E.  4.  30.  a  bond  there  is  a  diversitie  between  a  condition  of  an  obliga-  2 
q^lf  7^  n^'b''  ^^*^°'  which  concernes  the  doing  of  a  transitorie  act  without 

10  H.  "7.  15. '  limitation  of  any  time,  as  payment  of  money,  delivery  of  char- 
14  H.  8.  21.  a.  ters,  or  the  like,  for  there  the  condition  is  to  be  performed 
m^l'b'fi  presently,  that  is,  in  convenient  time;  and  when  by  the  con- 
tbl.  30/31.  dition  of  the  obligation  the  act  that  is  to  be  JS^^'done 
Boothie's  case,  to  the  obligee  is  of  his  own  nature  locall,  for  there  r308.~| 
^3  H.  6.  47,  48.  the  obligor  (no  time  being  limited)  hath  time  during  |_  b.  J 
436.)"          '  l^is  life  to  perform  it,  as  to  make  a  feoffment,  &c. 

(6  Rep.  31.  if  the  obligee  doth  not  hasten  the  same  by  request.     In  ease 

Boothie's  case,     -yyijere  the  condition  of  the  obligation  is  locall,  there  is  also  a  3 
(2*'ro11.  Abr.       diversitie,  when  the  concurrence  of  the  obligor  and  the  obligee 
436,  437.)  is  requisite,  (as  in  the  said  case  of  the  feoffment)  and  when 

[*]  Boothie's        ^he  obligor  may  performe  it  in  the  absence  of  the  obligee,  as 
(Doc."pia!'2(3"."    to  knowledge  satisfaction  in   the  court  of  king's  bench,  [*] 
457.)"       '       '    although  the  knowledge  of  satisfaction  is  locall,  yet  because 
he  may  do  it  in  the  absence  of  the  obligee,  he  miist  do  it  in 
convenient  time,  and  hath  not  time  during  his  life. 

Another  diversity  is,  where  the  condition  concerneth  a  tran-  4 
sitory  or  locall  act,  and  is  to  be  performed  to  the  feoffee  (A) 
or  obligee,  and  where  it  is  to  be  performed  to  a  stranger :  as 
if  ^.  be  bound  to  B.  to  pay  ten  pounds  to  C.  A.  tenders  to 
C.  and  he  refuseth,  the  bond  is  forfeited,  as  in  this  Section 
shall  be  said  more  at  large. 
(Vide  ant.  Another  diversitie  is  between  a  condition  of  an  obligation,  5 

Sect.  .324.)  and  a  condition  upon  a  feoffment,  where  the  act  that  is  locall 

Boothie's^case,^    is  to  be  done  to  a  stranger,  and  where  to  the  obligee  or  feoffor 
fo.  79.  h.  himself.     As  if  one  make  a  feoffment  in  fee,  upon  condition 

iSeignior  Crom-    that  the  feoffee  shall  infeoffe  a  stranger,  and  no  time  limited, 
IlE^rr*  the  feoffee  shall  not  have  time  during  his  life  to  make  the 

21  E.  4.  41.         feoffment,  for  then  he  should  take  the  profits  in   the   mean 
2  E.  4.  3,  4. 
19  H.  6.  67.  73.  76.     4  E.  4.  4.  b.     26  H.  8.  9.  b.     (2  Rep.  59.  219.  b.) 

time 

(A)  Should  it  not  he  feofiFor? 


unnecessary,  if  the  mortgage  is  made,  by  an  exercise  of  a  special  power;  as  in 
that  case,  the  property,  as  between  the  persons  entitled  to  it,  and  the  mortga- 
gor, is  always  the  debtor. 

4thly.  It  does  not  appear,  that  the  courts  of  equity  have  fixed  any  determi- 
nate period  of  time  to  he  such  a  length  0/  jMssession  as  to  lar  the  mortgagor  s 
right  of  redemption:  but  as,  in  the  courts  of  law,  twenty  years  is  a  bar  to  an 
entry  or  ejectment,  the  courts  of  equity,  (consistently  with  their  general  sys- 
tem, that  the  rules  and  practice  of  their  courts  should  bear  an  analogy  to  the 
rules  and  practice  of  the  courts  of  law)  have  inclined  to  allow  the  sa^ne  period 
of  ticenti/  jt/rars  to  he  a  har  to  a  redemption. — See  Cook  v.  Arnham,  3  P.  W. 
283.  ami  the  note  of  the  editor  at  the  end  of  that  case. — [Note  106.] 


L.  3.  C.  5.  Sect.  337.     upon  Condition.     [208.  b.  209.  a. 

time  to  his  own  use,  which  the  estranger  ought  to  have,  and 
therefore  he  ought  to  make  the  feoifment  as  soon  as  conve- 
niently he  may;  and  so  it  is  of  the  condition  of  an  obligation. 
But  if  the  condition  be,  that  the  feoffee  shall  rc-infeoffe  the 
feoffor,  there  the  feoffee  hath  time  during  his  life,  for  the 
privitie  of  the  condition  between  them,  unless  he  be  hastened 
by  request,  as  shall  be  said  hereafter. 

6  Another  diversitie  is,  when  the  obligor  or  feoffor  (A)  is  to 
enfeoffe  a  stranger,  as  hath  been  said,  and  when  a  stranger  is 
to  enfeoffe  the  feoffee  or  obligee ;  as  if  A.  enfeoffe,  B.  of  Black 

Acre,  upon  condition  that  if  C.  enfeoffe  B.  of  White  Acre,  A.  '^^^l%l^%f?^- 
shall  re-enter,  C.  hath  time  during  his   life,  if  B.  doth   not       '       ' 
hasten  it  by  request,  and  so  of  an  obligation. 

7  But  in  some  cases  albeit  the  conditions  be  collaterall,  and  is 
to  be  performed  to  the  obligee,  and  no  time  limited,  yet  in 
respect  of  the  nature  of  the  thing  the  obligor  shall  not  have 

time  during  his  life  to  perform  it.     As  if  the  condition  of  an  14  E.  3.  Dot. 
obligation  be,  to  grant  an   annuitie  or  yearly   rent  to  the  gg^gn-'Jcrom?* 
obligee  during  his  life,  payable  yearly  at  the  feast  of  Easter,  cell's  case, 
this  annuitie  or  yearly  rent  must  be  granted  before  Easter, 
or  else  the  obligee  shall  not  have  it  at  that  feast  during  his 
life,  et  sic  de  similihus;  and  so  was  it  resolved  by  the  judges 
[*]  of  the  common  pleas  in  the  argument  of  Andrew's  case,  [*]  Vid.  Dyer, 
which  I  my  selfe  heard.  _         ]^  f;^}^' 

8  Lastly,  When  the  obligor,  feoffor,  or  feoffee  is  to  Boothie's  case.) 

[309.1   do  a  sole  act  or  labour,  as  to  go  to  Jg®""  Rome,  Jeru- 
a.      J  salem,  &c.  in  such  and  the  like  cases,  the  obligor, 
feoffor,  or  feoffee,  hath  time  during  his  life,  and 
cannot  be  hastened  by  request.     And  so  it  is  if  a  stranger  to 
the  obligation  or  feoffment  were  to  do  such  an  act  he  hath 
time  to  do  it  at  any  time  during  his  life. 

"  If  the  executors  of  the  feoffor  tender,  &c."     So  as  now  it  ap-  (Ant.  206.  a.) 

peareth  that  either  the  heir  of  the  feoffor,  or  his  executors  may  gi'^'p^'  j*';  H^' 

(when  a  day  is  limited)  pay  the  money  and  so  also  may  the  ad-  ^ale. 

ministrator  of  the  feoffor  do,  if  the  feoffor  dye  intestate  [/]  ;  and  [/]  Vid.  Sect. 

this  may  the  ordinarie  do  if  there  be  neither  executor  or  admin-  •^^•*-  „     ,    , 

•  i.     i.  u    i.u  V  -J  SeeHensloes 

istrator  as  hath  been  said.  ca.  9  j^gp.  36.  b. 

"And  if  the  feoffee  refuse  it,  the  heirs  of  the  feoff  or  may  enter, 
dec."  Nbta,  a  tender  by  the  executors  or  administrators,  and  a 
refusall,  doth  give  the  heir  of  the  feoffor  a  title  of  entrie.  And 
here  by  this  (c&c.)  is  a  diversitie  implyed  when  a  tender  and 
refusall  shall  give  a  third  person  title  of  entrie. 

If  a  man  be  bound  to  A.  in  an  obligation  with  condition  to  33  ll.  6.  16.  17. 
enfeoffe  B.  (who  is  a  meer  stranger)   before  a  day,  the  obligor  i^^J^' ^i,^* 
doth  offer  to  enfeeoffe  B.  and  he  refuseth,  the  obligation  is  forfeit,  J^  ^  '^y^  g 
for  the  obligor  has  taken  upon  him  to  infeoff  him,  and  his  refusall  22  E.  4.  13. 
cannot  satisfie  the  condition  because  no  feoffment  is  made;  but  "^  E-  3. 
if  the  feoffment  had  been  by  the  condition  to  be  made  to  the  ^  ^^^^  29 ' 
obligee,  or  to  any  other  for  his  benefit  or  behoof,  a  tender  and  9  H.  7.  17. 

refusall  shall  save  the  bond,  because  he  himsclfe  upon  the  matter  10  H-  7.  14.  b. 
'  ^  35  H.  8. 

Dior.  56.  lib.  5.  fol.  23.     Lambo's  case.     (5  Rep.  23.     1  Roll.  Abr.  452. 
Post.  211.  a.     Ant.  206.  a.) 

is 

(A)  Instead  nj  feoflbr,  f//c  word  feoffee  U  wed  in  the  Ith  edition,  as  the  aeitse  appeart 
to  require. 


209.  a.] 


Of  Estates 


L.  3.  C.  5.  Sect.  337. 


[h]  8  E.  4.  14. 
2  E.  4.  ubi 
supra. 


19  H.  6.  34. 

(2  Rep.  59. 

1  Roll.  Abr.  452. 

1  Rep.  133.  b.) 


2  E.  4.  Entrie 
conge,  25. 


is  the  cause  wherefore  the  condition  could  not  be  performed,  and 
therefore  shall  not  give  himself  cause  of  action.  But  if  A.  be 
bound  to  B.  with  condition  that  C.  shall  enfeoffe  D.  in  this  case 
if  C.  tender,  and  D.  refuse,  the  obligation  is  saved,  for  the  obligor 
himselfe  undertaketh  to  do  no  act,  but  that  a  stranger  shall 
enfeoffe  a  stranger.  And  it  is  holden  in  bookes  [/;]  that  in  this 
case  it  shall  be  intended,  that  the  feoffment  should  be  made  for 
the  benefit  of  the  obligee.  Some  to  reconcile  the  bookes  seem 
to  make  a  difference  between  an  express  refusall  of  the  stranger, 
and  a  readinesse  of  the  obligor  at  the  day  and  place  to  make  per- 
formance and  the  absence  of  the  stranger ;  but  that  can  make  no 
difference.  I  take  it  rather  to  be  the  error  of  the  reporter,  and 
the  records  themselves  are  necessary  to  be  seen  j  for  the  law 
herein  is,  as  it  hath  been  before  declared. 

If  /.  enfeoffe  one  in  fee  upon  condition  to  enfeoffe  7.  *S'.  and 
his  heires,  the  feoffee  tenders  the  feoffment  to  /.  S.  and  he  re- 
fuseth  it,  the  feoffor  may  re-enter,  for  by  the  expresse  intent  of 
the  condition,  the  feoffee  should  not  have  and  retain  any  benefit 
or  estate  in  the  land,  but  is  as  it  were  an  instrument  to  convey 
over  the  land. 

But  in  that  case  if  the  condition  were  to  make  a  gift  in  tayle 
to  /.  *S'.  and  he  refuseth  it  and  a  tender  and  refusall  is  made, 
there  the  feoffor  shall  not  re-enter,  for  that  it  was  intended  that 
the  feoffee  should  have  an  estate  in  the  land.  And  so  it  is  if  a 
feoffment  be  made  upon  condition  that  the  feoffee  shall  grant  a 
rent  charge  to  a  stranger,  if  the  feoffee  tender  the  grant  and  he 
refu.se th  the  feoffor  shall  not  re-enter,  because  the  feoffee  was  to 
retain  the  land  ;  which  points  are  worthy  of  due  observation. 

Here  in  the  case  of  Littleton,  when  the  executors  make  the  ten- 
der, and  the  feoffee  refuseth,  albeit  the  heir  be  a  third  person, 
yet  is  he  no  stranger,  but  he  and  the  executors  also  are  privies 
in  law. 


(Post.  209.  b.) 


(2  Saun.  136. 


''  The  person  of  the  testator,  &c."  This  is  to  be  understood 
concerning  goods  and  chattels  either  in  possession  or  in  action, 
and  the  executor  doth  more  actually  represent  the  person  of  the 
testator,  than  the  heir  doth  the  person  of  the  ancestor.  For  if 
a  man  bindeth  himself,  his  executors  are  bound  though  they  be 
not  named,  but  so  it  is  not  of  the  heir ;  furthermore  here  the 
administrator  and  the  ordinary  also  are  implyed,  as  before  hath 
been  said  (1). 

Sect. 


(1)  But  by  the  33  H.  8.  c.  39.  if  any  person  be  indebted  to  the  king  by 
recognizance,  obligation  or  other  specialty,  and  die,  his  heir  shall  be  charged 
therein,  though  tbe  word  "heir"  be  not  comprised  in  such  recognizance,  &c. 
In  the  case  of  Sir  Gerard  Fleetwood,  8  Rep.  171.  lord  Coke  observes,  that  the 
freehold  and  inheritance  of  the  king's  debtor  are  bound  from  the  time  of  the 
debt  accrued.  If  the  observation  be  just,  it  must  by  the  common  law  have 
been  immaterial  with  respect  to  the  king,  whether  the  heir  was  named  in  the 
specialty  or  not. 

Perhaps  the  following  succinct  view  of  the  PRERorxATivE  Remedies  op 
THE  Crown,/"?-  the  Recover^/ of  Debts, — I.  At  the  Common  Law  : — II.  Under 
the  statute  of  Henry  8  : — III.  Under  the  statutes  of  Queen  Elizabeth  ;  and 
under  the  act  passed,  for  this    purpose  in  the   reign  of  his    late    Majesty: 

—IV.   And 


L.  3.  C,  5.  Sect.  338.       upon  Condition.  [209.  a. 

Sect.  338. 

A  ND  note,  that  in  all  cases  of  condition  for  payment  of  a  eertaine 
summe  in  grosse  touching  lands  or  tenements,  if  laivfal  tender  he 
once  refused,  he  which  ought  to  tender  the  money  is  of  this  (j[uit,  and 
fully  discharged  for  ever  afterwards. 

THIS 


— IV.  And  of  the  general  effect  of  these  remedies,  may  not  be  unacceptable 
to  the  reader. 

I.  By  the  Common  Lata,  execution  may  be  issued,  not  only  against  the 
goods  and  chattels,  but  against  the  lands  of  the  king's  debtor :  and,  for  rent 
reserved  on  a  lease,  the  king  may  distrain,  not  only  on  the  lands  comprised  in 
the  lease,  but  on  any  other  lands  of  his  debtor. 

II.  By  the  33  Hen.  8.  c.  39.  all  bonds  executed  to  the  king,  are  to  have  the 
same  force,  and  to  be  attended  with  the  same  remedies,  as  statutes  staple. 

III.  By  the  13  of  Queen  Elizabeth,  c.  4,  the  lands  of  treasurers,  receivers, 
and  other  accountants  to  the  crown,  therein  particularly  or  generally  mention- 
ed, are  made  liable  to  execution  for  debts  to  the  crown,  in  the  same  manner,  as 
if  the  party  had  acknowledged  a  recognizance  under  the  statute  of  Henry  8. 
A  doubt  arose  upon  this  statute,  whether  a  sale  might  be  made  under  it,  after 
the  death  of  the  accountant  or  debtor.  To  obviate  this  doubt,  the  explanatory 
statute  of  the  21tli  of  Elizabeth,  c.  3.  was  passed,  by  which  a  power  of  sale, 
after  the  death  of  the  debtor,  was  expressly  given.  Afterwards,  by  an  act 
made  in  the  odfli  year  of  Queen  Elizabeth,  the  explanatory  act  was  repealed, 
and  a  new  exposition  was  made  of  the  statute  of  the  13th  Elizabeth,  with  va- 
rious new  provisions.  But  the  act  of  the  29th  Elizabeth  being  only  tempo- 
rary, and  having  expired  early  in  the  reiga  of  James  I.  the  explanatory  act  of 
the  27th  Elizabeth  was  revived. 

IV.  However  it  fell  into  disuse,  and,  in  the  late  reign,  when  it  came  to  be 
examined,  on  occasion  of  the  exertions,  made,  during  lord  North's  administra- 
tion, for  the  recovery  of  the  crown  debts,  it  was  found  defective.  This  gave 
rise  to  the  act  of  the  '2f)th  of  his  late  Majesty,  c.  35.  by  which,  the  court  of 
exchequer  is  authorized,  on  the  application  of  his  majesty's  attorney  general, 
in  a  summary  way,  by  motion,  to  order  the  estates  of  crown  debtors,  which 
should  be  extended  by  any  writ  of  extent,  or  diem  clausit  extremum,  to  be 
sold  for  payment  of  the  debts. 

V.  1.  The  result  ajipears  to  be,  that  all  the  freehold  lands,  which  are  account- 
ant to  the  crowu,  under  the  acts,  which  have  been  mentioned,  has,  at  the  time 
when  he  enters  into  hii*  office,  are  chargeable  with  his  debts  to  the  crown  on 
account  of  that  office.  The  case  is  not  altered  by  his  selling  them  before  he 
becomes  indebted,  though  it  be  a  sale  to  a  bond  fide  purchaser,  for  a  valuable 
consideration,  and  without  notice.  Sir  Christopher  Hatton's  case,  10  Co.  Hep. 
55.  b.  The  same  doctrine  holds  in  respect  to  the  debts  of  a  person,  who  lias 
executed  a  bond  to  the  crown.  This  is  the  case  of  all  receivers  of  the  laud- 
tax,  as  they  execute  a  bond  to  the  crown  to  account  for  the  money  coming  to 
their  hands  as  receivers.  It  follows,  that  all  t'.ici;-  h;nds  are  chargeable  to  the 
crown  from  the  execution  of  the  lotul,  and  cou-.i^ututly,  though  they  £cll  them 

VuL.  11.^12  to 


209.  a.  209.  b.]  Of  Estates        L.  3.  C.  5.  Sect.  339. 

Vide  Sect.  rp  H  I  S  is  to  be  understood,  that  he  that  ought  to  tender  the 

sequent.  J^    money   is   of  this  discharged  for  ever  to  make  any  other 

tender;  but  if  it  were  a  dutie  before,  though  the  feoffor  enter  by 
force  of  tlie  condition,  yet  the  debt  or  dutie  remayneth. 
(9  Rep.  79.  a.)  As  if  A.  borroweth  a  Jg^^^hundred  pound  of  B.  and  fa  09.  "I 
after  mortgageth  land  to  JB.  upon  condition  for  pay-  L  ^-  J 
ment  thereof:  if  A.  tender  the  money  to  B.  and  he 
refuseth  it,  A.  may  enter  into  the  land,  and  the  land  is  freed 
for  ever  of  the  condition,  but  yet  the  debt  remaineth,  and  may 
be  recovered  by  action  of  debt.  But  if  A.  -without  any  loane, 
debt,  or  dutie  preceding  infeoifee  B.  of  land  upon  condition  for 
the  payment  of  a  hundred  pounds  to  B.  in  nature  of  a  gratuitie 
or  gift;  in  that  case  if  he  tender  the  hundred  pound  to  him 
according  to  the  condition,  and  he  refuseth  it,  B.  hath  no  reme- 
die  therefore ;  and  so  is  our  author  in  this  and  his  other  cases  of 
like  nature  to  be  understood. 


Sect.  339. 

A  LSO,  if  the  feoffee  in  morgage  before  the  day  of  payment  ivhich 

should  he  made  to  him,  makes  his  executors  and  die,  and  his  heir 

entreth  into  the  land  as  he  ought,  ^c.  it  seemeth  in  this  case  that  the 

feoffor  ought  to  pay  the  money  at  the  day  ajypointed  to  the  executors,  and 

not  to  the  heir  of  the  feoffee,  because  the  money  at  the  beginning  trenched 

to 

to  a  purchaser,  at  a  time  when  they  are  not  indebted,  and  have  no  money  be- 
longing to  the  crown  in  their  lands ;  still,  the  lands  are  liable  to  the  crown  for 
their  future  debts. 

As  between  the  crown  and  the  debtor,  the  lands  in  the  hands  of  his  trustees 
are  chargeable  with  the  crown  debts;  and,  in  the  late  case  of  the  King  v.  Smith, 
it  was  held  that  an  outstanding  legal  estate  will  not  protect,  even  a  bond  Jidt 
purchaser,  for  a  valuable  consideration,  without  notice,  against  crown  debts. 
See  Mr.  Sugden's  Law  of  A^endors,  4th  edition.  Appendix,  No.  15. 

In  the  case  of  the  King  v.  Smith,  Wightwick's  lleports  in  the  Exchequer, 
p.  39,  the  question  was,  w^hether  a  simple  contract  debt  to  the  crown  was  such 
a  charge  or  lien  on  the  freehold  estate  of  the  debtor,  as  should  bind  the  land 
in  the  hands  of  a  purchaser  from  him,  without  notice  and  without  fraud,  if 
the  debts  were  not  recorded  at  all,  or  not  recorded  till  after  the  conveyance. 
The  barons  were  unanimously  of  opinion  that  it  was  not ;  but  seem  to  have 
considered  that  the  land  of  such  a  debtor  would  be  chargeable  in  the  hands  of 
the  purchaser,  if,  at  the  time  of  the  purchase,  the  debtor  filled  a  situation 
notoriously  accountable  to  the  crown. 

V.  2.  With  respect  to  mpylwld  lands. — The  king  cannot  extend  the  copy- 
hold land  of  his  debtor;  Kitchen,  123;  Ilex  v.  Budd,  sir  Thomas  Parker,  190. 
8  Ves.  jun.  394,  395. 

V.  3,  Leaseholds  for  years  may  be  taken  in  execution  at  the  suit  of  the 
crown  debt;  but  though  on  record,  the  debt  of  the  crown  is  not  a  charge  or 
lien  on  leaseholds  for  years,  until  the  writ  of  execution  is  taken  out  upon  them 
and  delivered  to  the  sheriff. 

Generally  speaking,  what  has  been  said  in  this  annotation  applies  equally  to 
the  sureties  for  the  debtor  to  the  crown,  as  to  the  debtor  himself :_— and,  for 
many  legal  consequences,  a  pergon  accountable  to  the  king's  debtor  is  account- 
able to  the  king  himself. — [Note  107.] 


L.  1.  C.  5.  Sect.  339.  upon  Condition.      [209.  b.  210.  a. 

to  the  feoffee  in  manner  as  a  dutie,  and  shall  be  intended  that  the  estate 
was  made  hy  reason  of  the  lending  of  the  money  by  the  feoffee,  or  for 
some  other  dutie;  and  therefore  the  payment  shall  not  be  made  to  the 
heir,  *  as  it  seemeth,  but  the  words  of  the  condition  may  be  such,  as  the 
payment  shall  be  made  to  the  heir.  As  if  the  condition  were,  that  if 
the  feoffor  pay  to  the  feoffee  or  to  his  heirs  such  a  sum  at  such  a  day, 
Sfc.  there  after  the  death  of  the  feoffee,  if  he  dieth  before  the  day  limited, 
the  payment  ought  to  be  made  to  the  heir  (f  le  payment  doit  estre  fait 
al  heir)  at  the  day  api^ointed,  Sfc. 

''Ti  AY  such  a  sum  at  such  a  day,  &cJ'     Here  is  implyed,  18  E.  4.  fol.  18. 

that  this  payment   ought  to  be  reall,  and  not  in  shew  or  ^'b.  5.  fol.  98. 
appearance.    For  if  it  be  agreed  between  the  feoflPor  and  the  exe-  fg^H'^e^M*^^' 
cufcors  of  the  feoffee  that  the  feoffor  shall  pay  to  the  executors  20  E.  3.' 
but  part  of  the  money,  and  that  yet  in  appearance  the  whole  sum  Account,  PI.  70. 
shall  be  paid,  and  that  the  residue  shall  be  repaid,  and  accord-  ^^      P"  ^^^'^ 
ingly  at  the  day  and  place  the  whole  sum  is  paid,  and  after  the 
residue  is  repaid,  this  is  no  performance  of  the  condition,  for  the 
state  shall  not  be  divested  out  of  the  heir,  which  is  a  third  per- 
son, without  a  true  and  effectual  payment,  and  not  by  a  shadow  (5  Rep.  96.) 
or  colour  of  payment,  and  the  agreement  precedent  doth  guide 
the  payment  subsequent. 

And  by  this  Section  also   it  appeareth,  that  the  executors  do  ,^^^  209  a 
more  represent  the  person  of  the  testator,  than  the  heir  doth  the  9  Rep.  39.) ' 
ancestor;  for  though  the  executor  be  not  named,  yet 

[QlO.n  the  J8@°"law  appoints  him  to  receive  the  money,  but 
a.     J  so  doth  not  the  law  appoint  the  heir  to  receive  the 
money  unless  he  be  named. 

"  Ought  to  he  made  to  the  heir  at  the  day  appointed,  lix."     And 
here  it  also  appeareth,  that  if  the  condition  upon  the  morgage  be 
to  pay  to  the  morgagee  or  his  heires  the  money,  &c.  and  before 
the  day  of  payment  the  morgagee  dieth,  the  feoffor  cannot  pay 
the  money  to  the  executors  of  the  morgagee :  for  Litdeton  saith 
that  in  this  case  the  payment  ought  to  be  made  to  the  heir.     Et  vid.  H.  5.  fo.  96. 
in  hoc  casu  designatio  unius  personae  est  exclusio  alterius,  et  ex-  Goodalo's  case. 
pressum  facit  cessare  taciturn;  and  the  law  shall  never  seek  out  l^"^p' 3  j  {, 
a  person,  when  the  parties  themselves  have  appointed  one.    But  /j^^t,  47, ),.)' 
if  the  condition  be  to  pay  the  money  to  the  feoffee  his  heirs  or 
executors,  then  the  feoffor  hath  election  to  pay  it  either  [»i]  to  r„,]  12  e.  3. 
the  heir  or  executors.  Condition,  8 

If  a  man  make  a  feoffment  in  fee  upon  condition  that  the  *  ^'^• 
feoffee  shall  pay  to  the  feoffor  his  heirs  or  assigns  20  pound  at  ^  '^^' 
such  a  day,  and  before  the  day  the  feoffor  make  his  executors 
and  dieth,  the  feoffee  may  pay  the  same  either  to  the  heir  or  to 
the  executors,  for  they  are  his  assigns  in  law  to  this  intent.  But 
if  a  man  make  a  feoffment  in  fee  upon  condition  that  if  the 
feoffor  pay  to  the  feoffee  his  heirs  or  assigns  20  pound  before 
such  a  feast,  and  before  the  feast  the  feoffee  maketh  his  execu- 
tors and  dyeth,  the  feoffor  ought  to  pay  the  money  to  the  heir, 
and  not  to  the  executors,  for  the  executors  in  this  case  are  no 
assigns  in  law ;  and  the  reason  of  this  divcrsitie  is  this,  for  that 

in 

*  as  it  seemeth,  hut  the  words  of  the     and  M.  or  Roh. 
condition  'may  he  such,  as  the  payment         f  donqucs  added  in  L.  and  M.  and 
shall  he  made  to  the  Jmr,  not  in  L.  Eoh. 


210.  a.]  Of  Estates    L.  3.  C.  5,  Sect.  339. 

in  the  first  case  the  law  must  of  necessitie  find  out  assigns,  be- 
(1  Roll.  Abr.  cause  there  cannot  be  any  assigns  in  deed,  for  the  feofi"or  hath 
421.)  but  a  bare  condition  and  no  estate  in  the  land  which  he  can  as- 

sio-ne  over.  But  in  the  other  case  the  feofiee  hath  an  estate  in 
(Hob.  9.)  the  land  which  he  may  assigne  over;   and  where  there  may  be 

assio^ns  in  deed,  the  law  shall  never  seek  out  or  appoint  any  as- 
27  H.  8.  2.  sif^ns  in  law.     And  albeit  the  feoffee  made  no  assignment  of  the 

3  &  4  Ph.  &  estate,  yet  the  executors  cannot  be  assigns,  because  assigns  were 
Mar.  140.  a.  ^^^^  intended  by  the  condition  to  be  assigns  of  the  estate;  and 
(»)Mic.  23  &  so  was  it  resolved  (*)  Mich.  23  &  24  Eliz.  by  the  two  chief  jus- 
24  Eliz.  in  curia  tJces  in  the  court  of  wards  between  Randall  and  Browne,  which 
Wardorum  inter  t  „u„„,.„,^rl 

p    dai  &  observed. 

Biwne.  Vid.  But  if  the  condition  be  to  pay  the  money  to  the  feoffee  his 

2  Eliz.  Dier,  181.  Jigirs  Or  assigns,  and  the  feoffee  make  a  feoffment  over,  it  is  in 
PL  Com.  Chap^  ^^^  election  of  the  feoffor  to  pay  the  money  to  the  first  feoffee  or 
288°  Vid!%ood-  to  the  second  feoffee;  and  so  if  the  first  feoffee  dyeth,  the  feoffor 
ale's  case,  lib.  5.  niay  either  pay  the  money  to  the  heir  of  the  first  feoffee,  or  to 
lb.  96,  97.  jjjQ  second  feoffee,  for  the  law  will  not  enforce  the  feoffor  to  take 

G^o'daie^J'case,  knowledge  of  the  second  feoffment,  nor  of  the  validity  thereof, 
ubi  supra.  '  '  whether'the  same  be  effectuall  or  not,  but  at  his  pleasure,  and 
(Mo.  243.  ^jjg  g^gt  feoffee  and  his  heirs  are  expressly  named  in  the  condi- 

Ante208.a.) 

Sect. 


(1)  Hob.  9.  Pease  and  Styleraan. — A  man  was  bound  to  pay  201.  to  such  oi 
person  as  he  (the  ohlu/ee')  should  hij  his  ivill  appoint.      The  ohligee  made  J.  S. 
his  executor,  but  made  no  other  appointment.     It  teas  resolved  tipon  demtirrer, 
that  the  executor  should  not  have  the  201.  for  he  is  only^  an  assignee  in  laio,  tcho 
fakes  to  the  rise  ofihe  testator:  but  here  the  condition  is  in  favour  of  an  actucd 
assignee,  who  takes  to  his  own  use.      The  conusee  of  a  fine  leases  to  the  conusor 
for  99  years,  tvith  condition,  if  the  lessee  pays  to  the  lessor,  his  heirs  and  as- 
signs, that  the  uses  limited  to  the  conusee  and  his  heirs,  by  an  indenture,  shoidd 
cease:  the  lessor  dies.     Lord  Nottingham  icas  of  opinion,  that  the  uses  should 
not  cease  by  payment  to  the  administrator  of  the  lessor,  because  he  may  be  an 
assignee  in  deed,  as  here.     11  May,  1659,"  ^;>  Andrew  Young.— Lovd'^ott. 
MS.  notes. — Howe  v.  Whitebanck.     Upon  a  fine,  the  use  of  land  was  limited 
to  A.  for  80  yeas,  with  a  power  to  A.  and  his  assigns  to  make  leases  for  three 
lives,  to  commence  after  the  determination  of  that  term.     A.  assigned  oyer  to 
B.,  B.  died,  having  made  his  will,  and  appointed  C.  his  executor.    C.  assigned 
over  to  D. :  I),  in  pursuance  of  the  power,  made  a  lease  for  life.    The  question 
was,  whether  D.  was  such  an  assignee  of  A.  as  to  have  a  power  to  make  this 
lease;  or  whether  i-t  should  extend  only  to  the  immediate  assigns  of  A.P     The 
doubt  in  this  case  was  the  greater,  as  there  had  been  a  devolution  upon  an 
executor.     The  case  of  Pease  and  Styleman  was  cited,  where  it  was  said,  that 
an  executor  or  administrator  should  not  in  some  cases  be  said  to  be  a  special 
:isr,ignec.     But  all   the  court  seemed   to  incline  to  the  contrary,  and  that  D. 
should  be  called  an  assignee,  well  enough  for  the  purpose  of  making  the  leases 
in  question,  and  that  so  should  any  person  that  came  to   the  estate  under  the 
first  lessee,  though  there  should  be  twenty  mesne  assignments.     And  after- 
Y/ards,  in  the  Michaelmas  term  following,  judgment  was  given  accordingly.— 
1  Frcem.  476,-^i;Note  108.] 


L.  3.  C.  5.  Sect.  340.      upon  Condition.  [210.  a. 


Sect.  340. 

ALSO,  upon  siicJt  case  (f  sur  tiel  case)  of  feoffment  in  mortgage,  a 
question  hatli  been  demanded  in  wliat  place  tJie  feoffor  is  hound  to 
te7ider  (est  tonus  %  de  tender)  tJie  money  to  the  feoffee  at  the  day 
appointed,  cjj'c.  And  some  have  said,  upon  the  land  so  holden  in  mortgage 
(que  sur  la  terre  issint  §  tenus  en  mortgage),  because  the  condition  is 
depending  upon  the  land.  And  they  have  said  that  if  the  feoffor  he  upon 
the  land  there  ready  to  pay  the  money  (Et  ont  dit  ||  que  si  le  feoffor  soit 
^sur  le  terre  la  prest  a  paier  Ic  money)  to  the  feoffee  at  the  day  set,  and 
the  feoffee  be  not  then  there,  then  (^adonque)  tlie  feoff'or  is  quit  and 
excused  of  the  payment  of  the  money,  for  that  no  default  is  in  him.  But 
it  seemeth  to  so7ne  that  the  law  is  contrary,  and  thatdefaxdt  is  in  him  ;  for 
he  is  hound  to  seek  the  feoffee  if  he  be  then  in  ayiy  other  place  (s'il  soit 
adonque  en  **  ascun  auter  lieu)  within  the  realm  of  England.  As  if  a 
man  he  bou7id  in  an  obligation  of  20  jwund  upon  conditiori  etidorsed  upon 
the  same  obligation,  that  if  he  pay  to  him  to  whom  the  obligation  is  made 
at  such  a  day  10  pound,  then  (ffadonque)  the  obligation  of  20  p)ound 
shall  lose  his  force,  and  be  holden  for  nothing  ;  in  this  case  it  behooveth 
him  that  made  the  obligation  to  seek  him  to  whom  the  obligation  is  made 
if  he  be  in  England,  and  at  the  day  set  to  tender  unto  him  the  said 
10  pound,  otherwise  he  shall  forfeit  tlie  sum  of  20  pound  comprised  within 
the  obligation,  \\\\  i^-c.  And  so  it  seemeth  in  the  other  case,  tf-c.  And  albeit 
that  some  have  said  that  the  condition  is  depending  upon  the  land,  yet  this 
jjroves  not  that  the  making  of  the  condition  to  be  performed,  ought  to  be 
made  upon  the  land,  ^c.  no  more  than  if  the  condition  were  that  the  feoffor 
ai  such  a  day  shall  do  some  speciall  corporall  service  to  the  feoffee,  not 
naming  the  place  tvhere  such  corporall  service  shall  he  done.  In  this  case 
the  feoffor  ought  to  do  such  corporall  service  at  the  day  limited  to  the  feoff- 
fee,  in  wliat  place  soever  of  England  that  the  feoffee  be,  if  he  will  have 
advantage  of  tlie  condition,  (fc.  So  it  seemeth  in  the  other  case.  Audit 
seems  to  them,  that  it  shall  be  more  properly  said,  that  the  estate  of  the 
land  is  depending  upon  the  condition,  *  than  to  say  (que  a  f*  dire)  that 
the  condition  is  depending  upon  the  land,  ^c.     Sed  qutere,  &c. 

''  A  LSO,  vpon  such  case  of  feoff  men  f  in  mortgage,  a  question 
hath  been  demanded,  (be."  Here  and  in  otiier  places,  that 
I  may  say  once  for  all,  where  Littleton  maketh  a  doubt,  and 
setteth  down  scverall  opinions  and  the  reasons,  he  ever  settcth 
down  (*)  the  better  opinion  and  his  own  last,  and  so  he  doth  (s)  Vid.  Sect 

here.  UO.  302.  375.' 

f  sur — en  L.  and  31.  and  Roh.  **  ascuU'— un,  L.  and M.  and  Roh, 

X  de — a,  L.  and  M.  and  Roh.  ff  que  added  in  L.  and  M.  and 

§  tenus  not  in  L.  and  M.  Roh. 

II  que  not  in  L.  and  M.  hut  in  Roh,  \\\\  &c.  not  in  L.  and  M.  but  in  Roh. 

^  sur  le  terre  la  not  in  L.  and  M.  *  ctr.  added  in  L.  and  M.  and  Roh. 

or  Roh.  I*  est  a  tunt,  added  in  L.  and  M. 

^  que  added  in  L.  and  M.  and  Roh.  and  Roh, 


210.  b.  211.  a.J        Of  Estates        L.  3.  C.  5.  Sect.  340. 


[n]  8  E.  4.  4.  & 
14.  11  H.  4.  62. 
17  Ass.  p.  2. 

17  E.  3.  2. 
21  H.  7. 
Keylway.  74. 
16El.Dier.  3.7. 
lib.  4.  fo.  73. 

in  Borougt's 
case.    21  E.  4.  6. 
(5  Rep.  95. 

2  Cro.  423. 

3  Cro.  688.) 

18  E.  4.  2, 

19  R.  2. 
Det.  178. 
(Ant.  206.  b. 
207.  a.) 

(1  Roll.  453.) 
(Ant.  208.) 
[b]  2  E.  4.  3. 


] 


21  E.  3.  10. 

20  H.  6.  31. 

27  E.  3.  34. 

21  Ass.  13. 
7  E.  4.  4. 
21  E.  4.  17. 

20  E.  Avowrie, 
11.3.     45  E.  3.  I 


here,  [n]  For  at  this  day  this  doubt  is  settled,  having 
been  oftentimes  resolved,  that  seeing  the  5®^  money  is  fSlO. 
a  sum  in  grosse,  and  collaterall  to  the  title  of  the  land,  |_  b. 
that  the  feoffor  must  tender  the  money  to  the  person 
of  the  feoffee  according  to  the  later  opinion,  and  it  is  not 
sufficient  for  him  to  tender  it  upon  the  land;  otherwise  it  is  of 
a  rent  that  issueth  out  of  the  land.  But  if  the  condition  of  a 
bond  or  feoffment  be  to  deliver  twenty  quarters  of  wheat,  or 
twenty  load  of  timber,  or  such  like,  the  obligor  or  feoffor  is  not 
bound  to  carry  the  same  about  and  seek  the  feoffee,  but  the 
obligor  or  feoffor  before  the  day  must  go  to  the  feoffee,  and 
know  where  he  will  appoint  to  receive  it,  and  there  it  must  be 
delivered.  And  so  note  a  diversitie  between  money  and  things 
ponderous,  or  of  great  weight.  If  the  condition  of  a  bond  or 
feoffment  be  to  make  a  feoffment,  there  it  is  sufficient  [h']  for  him 
to  tender  it  upon  the  land,  because  the  state  must  pass  by  liverie. 

''  Within  the  reahne  of  England  (!)§."  For  if  he  be  out  of  the 
realm  of  England  he  is  not  bound  to  seek  him,  or  to  go  out  of 
the  realme  unto  him.  And  for  that  the  feoffee  is  the  cause  that 
the  feoffor  cannot  tender  the  money,  the  feoffor  shall  enter  into 
the  land  as  if  he  had  duly  tendered  it  according  to  the  condition. 

"  Some  sjyeciall  corjiorall  service  to  the  feoffee.^'  This  is  ^ 
diversity  between  a  rent  issuing  out  of  land,  and  a  corporall 
service  issuing  out  of  land,  for  it  sufficeth  (as  hath  been 
i^:^  said)  that  the  rent  be  tendered  upon  the  land  (1) 
(A),  out  of  which  it  issueth.  But  homage  or  any  other 
special  corporal  service  must  be  done  to  the  person  of 
the  lord,  and  the  tenant  ought  by  the  law  of  conveniency  to 
seek  him  to  whom  the  service  is  to  be  done  in  any  place  within 
England. 


[^i^] 


22  &  23  Eliz.  in  Banke  le  Roy, 
Dier,  354.  Lib.  8.  fol.   92.  in 


46  E.  3.  Barre,  216.  Mich, 
which  I  myself  heard  and  observed.  19  Eliz. 
France's  case.     (Cro.  Jac.  9.) 

If  a  man  be  bound  to  pay  twenty  pound  at  any  time  during  his 
life  at  a  place  certain,  the  obligor  cannot  tender  the  money  at 

the 

(A)  The  preceding  reference  io  lord  Nottingham's  note  bcIoioseem/imisDlaced,  as  the  note 
is  here  irrelevant.     It  appears  to  relate  to  the  commentary  on  Sect.  341. 

(1)  §  If  A.  recites  by  his  deed,  that  whereas  he  is  indebted  to  B  in  100/. 
and  he  covenants  with  £.  that  the  100?.  shall  be  paid  and  delivered  to  B.  or 
his  assigns  at  llotterdam,  in  Holland,  by  0.  without  any  suit  at  law,  upon  the 
first  requisition  which  shall  be  made  of  it;  in  this  case,  the  demand  may  be  in 
any  other  place  besides  llotterdam  :  for  though  payment  is  to  be  made  at 
llotterdam,  yet  the  demand  may  be  made  in  any  place ;  and  if  the  demand  be 
made  in  England,  or  at  Dort,  which  is  10  miles  from  llotterdam,  it  is  good, 
for  he  ought  to  have  reasonable  time  to  pay  it  after  the  demand,  having  respect 
to  the  distance  of  the  place.  But  if  the  demand  should  be  limited  to  Rotter- 
dam, perhaps  he  would  never  come  there,  and  so  the  covenant  would  be  of  no 
effect. — Mich.  1650,  between  Halsted  and  Vanleyden,  adjudged  upon  a  special 
verdict.  1  Roll.  Abr.  443. — In  Brownlow,  46,  it  is  jaid  down,  tliat,  if  money 
be  appointed  by  will  to  be  paid,  and  no  place  limited  for  the  payment,  there 
must  be  a  request  to  pay  the  meney,  and  the  executor  is  not  bound  to  seek 
him  to  whom  it  is  to  be  paid. — [Note  109.] 

(1)  Otherwise  when  the  lease  is  void  ;  for  there  no  acceptance  of  rent  after- 
wards can  make  it  have  contimiance.  Post.  215.  a.  Lord  Not.  MS. — [Note  110.] 


L.  3.  C.  5.  Sect.  341.    upon  Condition.      [211.  a.  211 .  b. 

the  place  when  he  will,  for  then  the  obligee  should  be  bound  to 

perpetual  attendance,  and  therefore  the   obligor  in  respect  of 

the  incertainty  of  the  time  must  give  the  obligee  notice  that  on 

such  a  day  at  the  place  limited,  he  will  pay  the  money,  and  then  (i  Roll.  Abr. 

the  obligee  must  attend  there  to  receive   it :  for  if  the  obligor  453.  Ant.  206. 

then  and  thei'e  tender  the  money,  he  shall  save  the  penaltie  of       ''' 

the  bond  for  ever. 

The  same  law  it  is  if  a  man  make  a  feoffment  in  fee  upon  con-  18  Eliz. 
dition,  if  the  feoffor  at  any  time  during  his  life  pay  to  the  feoffee  ^^'^^>  ^^'^• 
twenty  pound  at  such  a  place  certaiue,  that  then,  &c.     In  this   (2  Rep.  59. 
case  the  feoffor  must  give  notice  to  the  feoffee  when  he  will  pay  ^      P'      ' 
it,  for  without  such  notice  as  is  aforesaid,  the  tender  will  not 
be  suflQcient.     But  in  both  these  cases  if  at  any  time  the  obli-  (8  Rep.  92. 
gor  or  feoffor  meet  the  obligee  or  feoffee  at  the  place,  he  may  2  °c*'  ^g'^io^P' 
tender  the  money.  '   ' 

If  A.  be  bound  to  B.  with  condition  that  C  shall  enfeoffe  D.  (Hob.  51. 
on  such  a  day,  C.  must  give  notice  to  D.  thereof,  and  request  ^  p^^^'A*^*"'  ^^^' 
him  to  be  on  the  land  at  the  day  to  receive  the  feoffment,  and 
in  that  case  he  is  bound  to  seek  D.  and  to  give  him  notice. 

"  To  tender  (de  tender),"  or  tendre,  is  a  word  common  both  (2  E.  4.  3  &,  4.) 
to  the  Enjli^h  and  French,  in  Latine  offerre  ;  and  in  that  sense, 
and  with  that  Lati/nvford  it  is  alwayes  used  iu  the  common  law, 
Vide  Sect.  514,  the  tender  of  the  halfe  marke.     And  before, 
Sect.  333,  334.  337. 


[^11-]  B@- Sect.  341. 

J)  UT  if  a  feoffment  in  fee  he  made,  reserving  to  the  feoffor  a  yearehj 
rent,  and  for  default  of  payment  a  re-entrie,  ^-c.  in  this  case  the 
tenarit  needeth  not  (en  cest  case  il  ne  besoigne  *  le  tenant)  to  tender  the 
rent,  when  it  is  behind,  but  uj^on  the  land,  because  this  is  a  rent  issuing 
out  of  the  land,  ivhich  is  a  rent  seek  ((jue  f  est  rent  secke).  For  if  the 
feoffor  be  seised  once  of  this  rent,  and  after  he  commeth  upon  the  land, 
tf-c.  and  the  rent  is  denied  him,  he  may  have  an  assise  of  Novel  Dissei- 
sin. For  albeit  he  may  enter  by  reason  of  the  condition  broken,  ^c.  yet 
he  may  choose  either  to  relinquish  his  entrie,  or  to  have  an  assise,  Sfc. 
And  so  there  is  a  diversitie,  as  to  the  tender  of  a  rent  which  is  issuing 
out  of  the  land,  and  of  the  tender  of  another  sum  in  grosse,  which  is 
not  issuing  out  of  any  land. 

HERE  the  diversitie    appeareth    between    a   sum   in   gross, 
and  a  rent  issuing  out  of  the  land,  as  hath  been   touched 
before. 

"  Yet  he  may  choose,  either  to  relinquish  his  entrie,  or  to  have 
an  assise." 

Here  it  appeareth,  that  if  the  condition  be  broken  for  non-  (Ant.  145.  n.) 
payment  of  the  rent,  yet  if  the  feoffor  bringeth  an  assise  for  the  14  E.  .3.    Entro 

congeable,  45. 
(14  Ass.  11.     45  Ass.  5.     6  II.  7.  3.     17  E.  3.  73,     PI.  Com.  133.  22  H.  6.  67. 
(3  Rep.  64,  65.)     (1  Roll.  Abr.  475.     Post.  373.  a.    Noy,  7.) 

rent 
*  a  added  in  L.  and  M.  and  Roh.         f  coo  added  in  L.  and  M.  and  Roh. 


211.  b.  212.  a.J         Of  Estates        L.  3.  C.  5.  Sect.  342. 

rent  due  at  that  time,  he  shall  never  enter  for  the  conditiou 
broken,  because  he  affirmeth  the  rent  to  have  a  continuance, 
and  thereby  wayveth  the  condition.  And  so  it  is  if  the  rent  had 
had  a  clause  of  distresse  annexed  unto  it,  if  the  feoffor  had 
destrained  for  the  rent,  for  non-payment  whereof  the  condition 
■was  broken,  he  should  never  enter  for  the  condition  broken, 
but  he  may  receive  that  rent  and  acquite  the  same,  and  yet  enter 
for  the  condition  broken.  But  if  he  accept  a  rent  due  at  a  day 
after,  he  shall  not  enter  for  the  condition  broken,  because  he 
thereby  affirmeth  the  lease  to  have  a  continuance  (1). 


(1  Roll.  Abr.  445,  446.)  gg^t.    342. 

(2  Cro.  13,  14.) 

A  ND  therefore  it  will  be  a  good  and  sure  thing  for  him  that  he  will  make 
such  feoffment  in  mortgage,  to  appoint  an  esjyecial place  (2)  ivhere  the 
money  shall  be  paid,  and  the  more  speciall  that  it  be  jJut,  the 
j|@°"  better  it  is  for  the  feoffor.  As  if  A.  infeoffe  B.  to  have  to  rQlQ."] 
hwi  and  to  his  heires,  vpon  such  condition,  that  if  A.  pag  to  B.  |_  a.  J 
en  the  Feast  of  Saint  3Iichael  the  Arch-Angell  next  camming, 
in  the  cathedrall  church  of  St.  Paul's  i7i  London,  within  four  hours  next 
before  the  hour  of  noon  of  the  sarne  Feast,  at  the  Mood  loft  of  the  Mood 
of  the  North  door  (a  le  Rood  loft  de  *  le  Rood  de  le  North  doore) 
within  the  same  church,  or  at  the  tomb  of  Saint  Erkenwald,  or  at  the 
door  of  such  a  chaj^pell,  or  at  such  a  pillar,  ivithin  the  same  church,  that 
then  it  shall  be  latvfid  to  the  aforesaid  A.  and  his  heires  to  enter,  Sfc.  in 
this  case  he  needeth  not  to  seek  the  feoffee  in  any  other  place,  nor  to 
be  in  any  other  place,  but  in  the  place  comprised  in  the  indenture,  nor 
to  be  there  longer  than  the  time  specified  in  the  same  indenture,  to  ten- 
der or  pay  the  money  to  the  feoffee,  ^c. 

HERE  is  good  counsell  and  advice  given,  to  set  down  in 
conveyances  every  thing  in  certaintie  and  particularitie,  for 
certaintie  is  the  mother  of  quietness  and  repose,  and  iucertaintie 
the  cause  of  variance  and  contentions ;  and  for  obtaining  of  the 
one,  and  avoiding  of  the  other,  the  best  meane  is,  in  all  assur- 
ances, to  take  counsell  of  learned  and  well  esperienced  men,  and 
not  to  trust  only  without  advice  to  a  precedent.  For  as  the  rule 
is  concerning  the  state  of  a  man's  bodie,  Nidhim  medicamentum 

est 
*  le  Rood  de  le  not  in  L.  and  M.  or  Roll. 


(1)  Though  he  received  part  of  the  rent,  he  may  re-enter  for  the  residue 
that  is  unpaid.     10  H.  7.  24.  a.— [Note  111.] 

(2)  Upon  the  marriage  of  lord  Anglesea  with  a  daughter  of  lady  Dorchester, 
a  term  of  years  was  limited  in  his  lordship's  Irish  estates,  for  raising  12,000^. 
for  the  portions  of  the  daughters.  There  was  but  one  daughter  of  the  mar- 
riage. It  was  made  a  question  whether  the  portion  was  to  be  paid  in  England, 
without  any  deduction  or  allowance  for  the  exchange  from  Ireland  to  England  ? 
It  was  determined  in  Chancery,  that  the  portion  ought  to  be  jiaid  in  England, 
where  the  contract  was  made  and  the  jjarties  resided,  and  not  in  Ireland ; 
because  it  was  a  sum  in  gross,  and  not  a  rent  issuing  out  of  land.  Vin.  Abr. 
vol.  5.  209.— [Note  112.] 


L.  3.  C.  5.  Sect.  343-44.   upon  Condition.  [212.  a.  212.  b. 

est  idem  omnibus,  so  in  the  state  and  assurance  of  a  man's  land, 
Nullum  exemiilum  est  idem  omnibus. 

"At  tJie  tomb  of  Saint  FrA-enu-(dd,&c."  This  Erkemcald 
was  a  younger  son  of  Anna,  king  of  the  East  JSaxons,  and  was 
first  abbot  of  Clierseym  >S'»r?r_y  which  he  had  founded,  and  after 
bishop  of  London,  a  holy  and  devout  man,  and  lieth  buried  in 
the  south  isle,  above  the  quire  in  Saint  Paul's  church,  where  the 
tomb  yet  remaineth,  that  Littleton  speaketh  of  in  this  place:  he 
flourished  about  the  ycare  of  our  Lord  G80. 

The  residue  of  this  Section  and  the  {&c.)  are  evident. 


Sect.  343. 

ALSO^  in  such  case,  where  the  j^^ace  f  of  jjaT/ment  is  limited,  the 

feoffee  is  not  bound  (le  feoflfee  n'est  |  oblige)  to  receive  the  ijayment 

in  any  other  place  hut  in  the  j^lace  so  limited.    But  yet  if  he  do  receive 

the  jmyment  in  another  place,  this  is  good  enough  and  as  strong  for  the 

feoffor  as  if  the  receipt  had  been  in  the  same  place  so  limited,  ^"C. 

HEREBY  it  appearcth  that  the  place  is  but  a  circumstance ;  (6  Rep.  46.  b. 
and  therefore  if  the  obligee  receiveth  it  at  any  other  place,  47.  Plo.  69.  b. 
it  is  sufficient,  though  he  be  not  bound  to  receive  it  at  ^  ^^^-        ' 

[312. "I  any  other  place.     ^^  And  so  it  is  if  the  money  be  to 
b.    J  be  paid  on  such  a  feast,  yet  if  the  money  be  tendred 
and  received  at  any  time  before  the  day,  it  is  suffi- 
cient (1). 


Sect.  344. 

A  LSO,  in  the  case  of  feoffment  in  mortgage,  if  the  feoffor  payeth  to 

the  feoffee  a  horse,  or  a  cup  of  silver,  or  a  ring  of  gold,  or  any  such 

other  thing  in  full  satisfaction  of  the  money,  and  the  other  receiveth  it, 

this  is  good  enough,  and  as  strong  as  if  he  had  received  the  sum  of 

money, 

f  of  payment   not    in    L.  and  M.         |  pas  added    in  L.   and  31.    and 
or  E.oh.  Roll. 


(1)  It  hath  been  formerly  doubted.  Whether  the  defendant,  in  such  a  case, 
ought  not  to  plead  specially?  See  1  Cro.  142.  S.  C.  1  Ander.  198.  S.  C. 
Mo.  267.  S.  C.  Ow.  45.  Savil.  96.  1  Leon.  311.  But  now  this  point  is 
settled;  for  per  4  Anncc,  cap.  16.  sect.  12.  if  the  obligor,  his  heirs,  executors, 
and  administrators,  have,  before  the  action  brought,  paid  to  the  obligee,  his 
executors  or  administrators,  the  principal  and  interest  due  by  the  condition  of 
the  bond,  though  such  payment  was  not  strictly  made  according  to  the  con- 
dition, yet  it  may  be  pleaded  in  bar  of  such  action,  and  shall  be  as  effectual 
a  bar  thereof  as  if  the  money  had  been  paid  at  the  day  and  place,  according 
to  the  condition,  and  had  been  so  pleaded.  Kote  to  the  llih  edition, — 
[Note  113.] 


212.  b.  213.  a.]  Of  Estates     L.  3.  C.  5.  Sect.  344. 

money,  though  the  horse  or  the  other  thing  were  not  of  the  twentieth  part 
of  the  value  of  the  sum  of  money,  because  that  the  other  hath  accepted 
it  in  full  satisfaction'^. 


(Dver,  1.) 

3  H.  7.  4.  b. 
9  H.  7.  16. 

11  H.  7.  20,  21. 
19  E.  4.  1.  b. 
47  E.  3.  24. 

22  E.  4.  24. 
37  H.  6.  26. 
Li.  9.  fo.  78. 
Peytoo's  case. 
(1  RoU.  Rep. 
296.) 

12  H.  4.  23. 

*  Peytoe's  case 
ubi  supra. 
(Ant.  207.) 

4  II.  7.  4.  Dy. 
35  H.  8.  56. 
27  H.  8.  1. 
(Ant.  208.  b.) 


Lib.  5.  fo.  117. 
Pinnel's  case. 


26  H.  6.  tit. 
Barre,  37. 
(Sid.  44.  Post. 
373.  a.  Mo.  47.) 


30  E.  3.  23. 
(Hob.  68,  69.) 


11  R.  2.  tit. 
Barre,  3.  43. 
(1  Roll.  Abr. 
470.  604.) 
(Noy,  110. 

5  Rep.  117.) 
37  H.  6.  26. 
46  E.  3.  33. 
34  H.  6.  17. 

12  H.  8.  1.  b. 


HEREUPON  are  many  diversities  worthy  of  observation. 
First,  there  is  a  diversitie,  when  the  condition  is  for  pay- 
ment of  money;  and  when  for  the  deliverie  of  a  horse,  a  robe, 
a  ring,  or  the  like  :  for  where  it  is  for  payment  of  money,  there 
if  the  feoffee  or  obligee  accept  an  horse,  &c.  in  satisfaction,  this 
is  good :  but  if  the  condition  were  for  the  deliverie  of  a  horse, 
or  robe,  there,  albeit  the  obligee  or  feoffee  accept  money  or  any 
other  thing  for  the  horse,  &c.  it  is  no  performance  of  the  con- 
dition. The  like  law  is,  if  the  condition  be  to  acknowledge  a 
recognizance  of  twentie  pounds,  &c.  if  the  obligee  or  feoffee 
accept  twenty  pounds  in  satisfaction  of  the  condition,  it  is  not 
sufficient  in  law,  *  but  notwithstanding  such  acceptance,  the 
condition  is  broken.  And  so  it  is  of  all  other  collaterall  condi- 
tions, though  the  obligee  or  feoffee  himself  accept  it. 

Secondly,  in  case  when  the  condition  is  for  payment  of  money, 
there  is  a  diversitie  when  the  money  is  to  be  payd  to  the  partie, 
and  when  to  an  estranger;  for  when  it  is  to  be  payd  to  an 
estranger,  there  if  the  stranger  accept  an  horse  or  any  collaterall 
thing  in  satisfaction  of  the  money,  it  is  no  performance  of  the 
condition,  because  the  condition  in  that  case  is  strictly  to  be 
performed.  But  if  the  condition  be,  that  a  stranger  shall  pay 
to  the  obligee  or  feoffee  a  sum  of  money,  there  the  obligee  or 
feoffee  may  receive  a  horse,  &c.  in  satisfaction. 

Thirdly,  where  the  condition  is  for  payment  of  twentie  pounds, 
the  obligor  or  feoffor  cannot  at  the  time  appointed  pay  a  lesser 
sum  in  satisfaction  of  the  whole,  because  it  is  apparent  that  a 
lesser  sum  of  money  cannot  be  a  satisfaction  of  a  greater.  But 
if  the  obligee  or  feoffee  dr,  at  the  day  receive  part,  and  thereof 
make  an  acquittance  under  his  seal  in  full  satisfaction  of  the 
whole,  it  is  sufficient,  by  reason  the  deed  amounteth  to  an 
acquittance  of  the  whole.  If  the  obligor  or  lessor  pay  a  lesser 
sum,  either  before  the  day  or  at  another  place  than  is  limited  by 
the  condition,  and  the  obligee  or  feoffee  receiveth  it,  this  is  a 
good  satisfaction. 

Fourthly,  not  only  things  in  possession  may  be  given  in  satis- 
faction (whereof  Litihton-  putteth  his  case,)  but  also  if  the 
obligee  or  feoffee  accept  a  statute  or  a  bond  in  satisfaction  of  the 
money,  it  is  a  good  satisfaction. 

If  the  obligor  or  feoffor  be  bound  by  condition  to  pay 
an  hundred  markes  at  a  certaine  g^"  day,  and  at  the  r213."| 
day  the  parties  do  account  together,  and  for  that  the  L  3,.  J 
feoffee  or  obligee  did  owe  twentie  pound  to  the  obligor 
or  feoffor,  that  the  sum  is  allowed,  and  the  residue  of  the  hun- 
dred markes  paid,  this  is  a  good  satisfaction,  and  yet  the  twenty 
pound  was  a  chose  in  action,  and  no  payment  was  made  thereof, 
but  by  way  of  retainer  or  discharge  (1). 

''In 
*  &c.  added  in  L.  and  M.  and  Roh. 


(1)  In  Roll.  Rep.  296.  it  is  said,  that  the  reason  why  a  collateral  thing  cannot 


be  satisfied  with  money,  or  other  collateral  thing,  is,  because  the 


collateral 
thing 


L.  3.  C.  5.  Sect.  345.    upon  Condition.  [213.  a. 

^'  In  fvU  satisfaction."  Nota,  in  satisfaction  and  in  full  satis- 
faction is  all  one. 


Sect.  345. 

ALSO,  if  a  man  infeoffe  an  other  *  upon  condition,  that  he  and  his 
heirs  shall  render  to  a  stranger  and  to  his  heirs  a  yearly  rent  of  20 
shillings,  ^c.  and  if  he  or  his  heirs  fail  of  2^ayment  thereof  that  then  it 
shall  be  kuvfull  to  the  feoffor  and  his  heirs  to  enter,  this  is  a  good  con- 
dition: and  yet  in  this  case,  albeit  such  annuall  piayment  he  called  in 
the  indenture  a  yearly  rent,  this  is  not  properly  a  rerit.  For  if  it  should 
he  a  rent,  it  must  he  rent  service,  rent  charge,  or  a  rent  secke,  and  it  is 
not  any  of  these  (et  f  il  n'est  ascun  de  eux).  For  if  a  stranger  were 
seised  of  this,  and  after  it  were  denied  him,  he  shall  never  have  an  as- 
sise of  this,  because  that  it  is  not  issuing  out  of  any  tenements  (pur  ceo 
que  il  n'est  %  pas  issuant  1|  hors  d'ascun  tenements);  and  so  the  stranger 
hath  not  any  remedy,  if  such  yearly  rent  he  behind  in  this  case,  hut 
that  the  feoffor  or  his  heirs  may  enter,  ^c.  And  yet  if  the  feoffor  or 
his  heirs  enter  for  default  of  payment,  then  such  rent  is  taken  aivay  for 
ever.  And  so  such  a  rent  is  hut  as  a  paine  (et  issint  tiel  rent  §  n'est 
forsque  un  peine)  set  upon  the  tenant  and  his  heirs,  that  if  they  ivill 
not  pay  this  according  to  the  form  of  the  indeyiture,  they  shall  lose  their 
land  by  the  entrie  of  the  feoffor  or  his  heirs  for  default  of  payment. 
And  in  this  case  it  seemeth  that  the  feoffee  and  his  heirs  ought  to  seek 
the  stranger  and  his  heirs  if  they  he  toithin  England,  \.  because  there  is 
no  jjlace  limited  lohere  the  payment  shall  be  made,  and  for  that  such 
rent  is  not  issuing  out  of  any  land  (et  pur  ceo  que  tiel  rent  n'est  pas 
issuant  ||  hors  d'ascun  terre),  ^-c. 

''  ^HALL  render  to  a  stranger  a  yearly  rent,  tfer."  (Dr.  and  Stud. 

This  reservation  is  merely  void  [a]  for  the  reasons  hereafter  ^''P- ^Nq 
in  this  section  alledged  by  Littleton,  and  also  for  that  no  estate  f"  70.  71.' 
moveth  from  the  stranger,  and  that  he  is  not  partie  to  the  deed.  (pio.  243.  sera 
And  albeit  it  be  a  voyd  reservation,  and  can  be  no  rent,  and  ^""^''\'""^^i® 
the  words  of  the  condition  be,  that  if  the  feoifce  or  his  heirs  fail  cm? Car.  288."^' 
of  payment  of  it,  (that  is  of  the  annuall  rent)  that  then,  &c.  yet  Ant.  143.  b.) 
it  appeareth  that  the  condition  is  good,  and  annuall  rent  shall 
be  taken  for  an  annuall  sum  of  money  in  grosse,  and  not  in  the 
proper  signification  thereof,  viz.  to  be  a  rent  issuing  out  of  land, 
which  is  to  be  observed,  that  words  in  a  condition  shall  be  taken 

out 

*  m /ee  added  in  L.  and  M.  and  Roh.  f  because  there  is  no  place  limited 

f  que  added  in  L.  and  M.  and  Roh.  where  the  payment  shall  be  made,  and 

j  pas  not  in  L.  and  M.  not  in  L.  and  M.  or  Roh. 

jl  hors  not  in  L.  and  M.  JJ  hors  not  in  L.  and  M.  or  Roh. 
§  n'est — L.  and  M.  and  Roh. 


thing  is  not  due,  and  so  no  contract  can  be  made  of  it  till  the  day  of  payment; 
and  that  the  reason  why  money  may  be  satisfied  by  a  collateral  thing  is,  be- 
cause it  is  of  certain  value. — [Note  114.] 


213.  a.  213.  b.] 


Of  Estates        L.  3.  C.  5.  Sect.  346. 


out  of  their  proper  sense,  nt  res  mar/is  valeat  qiuim  pei-eat,  and 
[h]  6  E.  2.  Entr.  SO  in  like  cases  it  is  holden  \lj]  in  our  books. 

cong.  55.  reci- 

pere.     8  Ass.  34.  Revertere. 


(1  Rep.  76. 
Godbolt,  448.) 


(Ant.  148.  a. 
S«ct.  221.) 


[c]  18  E.  2. 
Ass.  381. 
26  H.  8.  2. 
13  E.  2.  Feoff- 
ments &  Faits, 
108. 
31  Ass.  pi.  31. 

Id]  Vide  Sect. 
384. 


But  if  A.  be  seised  of  certain  lands  and  A.  and  B.  joyn  in  a 
feoffment  in  fee,  reserving  a  rent  to  them  both  and  their  heirs, 
and  the  feoffee  grant  that  it  shall  be  lawfull  for  them 
and  their  heirs  to  distrein  for  B@^the  rent,  this  is  a  TQIS.! 
good  grant  of  a  rent  to  them  both,  because  he  is  partie  L  ^-  J 
to  the  deed,  and  the  clause  of  distress  is  a  grant  of 
the  rent  to  A.  and  B.  as  it  appeareth  before  in  the  chapter  of 
rents.  But  if  B.  had  been  a  stranger  to  the  deed,  then  B.  had 
taken  nothing.  And  upon  this  diversitie  are  all  the  books  [c], 
y{]i\c\i  prima  facie  seem  to  vary,  reconciled. 

^' For  if  it  should  he  a  rent,  it  must  he  rent  service,  rent 
charge,  or  a  rent  secke,  and  it  is  not  any  of  these."  This  is  a 
good  lofjicall  argument  d  divisione,  &  argumentum  a  divisione 
est  fortissimum  in  lege.  {tV]  Littleton  useth  this  argument  else- 
where, where  see  more  of  this  matter. 

"  For  default  of  payment."  Note  here,  seeing  it  is  but  a 
sum  in  grosse,  there  need  no  demand  of  the  rent;  for  Littleton 
here  saith,  that  the  feoffee  ought  to  seek  the  person  of  the 
stranger  to  pay  him  the  sum  of  money,  because  it  is  a  sum  in 
grosse  and  not  issuing  out  of  the  land. 


Sect.  346. 

A^T>  here  note  two  tilings:  one  is,  that  no  rent  {tvhich  is  i^'^'operly 
said  a  rent)  may  he  reserved  upon  any  feoffment^  gift,  or  lease,  hut 
only  to  the  feoffor,  or  to  the  donor,  or  to  the  lessor,  or  to  their  heirs, 
and  in  no  manner  it  may  he  reserved  (&  en  nul  ||  maner  §  il  poit  estre 
reserve)  to  any  strange  person.  But  if  two  jointenants  make  a  lease 
hy  deed  indented,  reserving  to  one  of  them  a  certain  yearly  rent,  this  is 
good  enough  to  him  to  whom  the  rent  is  reserved,  for  that  he  is  p'ivie 
to  the  lease,  and  not  a  stranger  to  the  lease,  ^c. 


(Hob.  130. 
2  Roll.  Abr.  447-. 
Post.  386. 
8  Rep.  71. 
Ant.  39.  b.) 


"  ^  0  the  feoffor,  donor,  &c.  or  to  their  heires."  Hereby  it  may 

seem  that  if  a  man  make  a  feoffment,  gift,  or  lease,  that 

(omitting  himself)  he  may  reserve  a  rent  to  his  heirs  (1).     But 

Littleton 


antev  added  in  L.  and  M.  andlioh.         §  il  not  in  L.  and  31.  or  Roh. 


(1)  Plo.  107.  If  a  man  leases,  rendering  rent  to  the  heir,  it  is  void;  for  the 
heir  takes  as  jmrchaser,  and  is  quasi  a  stranger.  Hoh.  130.  Oats  v.  Frith. 
Father  seised  in  fee  and  son  join  in  a  lease  to  commence  after  the  death  of  the 
father,  rendering  rent  to  the  son,  and  dies,  the  reservation  was  adjudged  void;  for 
though  the  son  proves  heir  by  the  event,  that  does  not  mend  the  case:  hut  if  the 
reservation  had  been  to  the  heir  of  the  lessor,  omitting  the  lessor,  it  would  have 

haen 


L.  3.  C.  5.  Sect.  340.    upon  Condition.     [213.  b.  214.  a. 

Littleton  \s,  not  so  to  be  understood ;  his  meaning  is,  that  either 
the  feoffor,  &c.  may  reserve  the  rent  to  himself  only,  or  to  himself 
and  his  heirs.     And  yet  it  is  holden  [e]  in  our  books,  that  a  man  W  5E.3.  27, 
may  make  a  feoffment  in  fee  reserving  a  rent  of  forty  "/^^^^  -jgi  ^x 

t314:.  "I   shillingstothefeofforfor  term  of  his  life,  and  £@|°"  after  (lo  Rep.  io6. 
a.     J   his  decease,  a  pound  of  comyuc  to  his  heirs,  that  this  Hob.  1.30.) 
is  good.  (^°'-  *^-  ^-^ 

If  a  man  make  a  feoffemeut  in  fee,  reserving  a  rent  to  him  or 
his  lieirs,  it  is  good  [_/']  to  him  for  term  of  his  life,  and  void  to  [/]  Lib.  5. 

his  heir.  ^°.'-,PV, 

'  li  Tl    /  -"Aallorie  s  case. 

been  good  ifor  though  the  rent  never  was  in  the  father  to  demand,  yet  the  son  would 
tahe  it',  not  as  a  purchaser,  hut  as  a  rent  inherent  in  the  root  of  the  reversion, 
which  he  has  hy  descent  from  his  father  ;  and  in  this  sciise  therent  itself  loas  in 
the  father,  viz.  to  release  {hy  the  word  rent,  hut  not  action')  though  not  to  ask.  So 
note  the  difference  (says  Ilohart)  when  in  such  a  lease  the  rent  is  reserved  to  the 
heir  first,  omitting  the  ancestor,  which  is  good,  and  where  an  annuity  or  tcarranty 
is  granted  against  the  heir,  omitting  the  ancestor,  which  is  not  good.  It  appears 
in  the  case  of  Littleton ,  that  though  the  reservation  to  a  strangerhehad  to  carry  any 
rent  to  Uie  stranger, yet  it  ivillhe  good  to  the  lessor,  and  that  not  only  during  his 
life,  hut  generally  during  all  the  term  ',  for  when  it  is  said,  rendering  to  1.  S.  the 
icofds  I.  S.  shall  he  void,  in  the  same  manner  as  if  he  had  said,  rendering  rent 
generally :  because, 1st.  If  a  man  leases,  rendering  rent  to  him  and,  a  stranger,  it  is 
good  to  him  clearly,  and  void  to  the  stranger.  31  Ass.  30.  2dly.  When  a  man 
leases,  rendering  rent  to  him  and  his  heirs  general,  yet  the  laxv  will  direct  it  to  an 
issue  who  is  not  his  heir  general,  merely  for  congruity's  sake.  Dyer,  115.  b.  sir 
Thomas  Wyatt's  case,  and  before  12.  b.  Diff'erence  between  a  lease  reserving  rent 
to  I.  S.  and  a  lease  up)on  condition  that  I.  S.  shall  re-enter  if  the  rent  be  in  arrear, 
for  there  neither  shall  enter  ;  not  I.  S.  because  he  cannot  hy  law  ;  not  the  lessor, 
because  there  are  no  words  to  give  re-entry  to  any  beside  I.  S.  But  in  the  case 
of  Doctor  and  Student,  feoffment  upon  condition  that  he  shallpay  20/.  to  I.  S.  and 
that  otherwise^.  S.  shall  re-enter  ;  there.,  though  I.  S.  cannot  re-enter,  the  foeffor 
can,  for  there  the  condition  loas  createdby  the  first  icords  :  and  though  he  intends 
the  advantage  of  this  to  I.  S.  it  does  not  signify.  So  28  H.  8.  Dyer,  33.  Devise 
to  theprior  of  St.  B.  so  that  he  pays  to  the  Dean  and.  Chapiter  of  St.  Paul's,  and 
that  if  he  does  not  so,  the  Dean  and  Chapter  shall  have  it,  that  is  a  void  condition 
to  make  it  a  remainder,  hut  it  is  good  for  the  devisor  to  re-enter.  Difference 
between  a  rent  upon  a  lease  and  a  rent  upon  a  feoff^ment :  in  the  last  case  rent 
would  he  void  to  a  stranger,  and  yet  not  good  to  the  feoffor,  because  thelaiv  does 
not  create  it,  and  it  is  not  so  reserved;  but  the  case  of  a  feoffment  is  like  to  a  grant 
of  rent  to  I.  S.  and  that  if  it  be  in  arrear  that  I.  D.  shall  distrain,  there  the  dis- 
tress is  of  no  value,  40  Ass.  26.  But  here  the  tcords  are  sufficient  to  create  a  rent, 
and  in  an  entire  clause, part  may  be  void.  4  E.  4.  Obligation  to  I.  S.pai/ahle  to 
I.  D.  it  is  good  to  I.  S.  Difference  ichcre  the  rejiugnancy  of  words  appears,  as 
here,  and  where  it  does  not :  as  a  release  of  all  actions  which  I  have  as  executor, 
and  I  have  none  as  executor ;  this  is  void,  because  it  does  not  appear.  22  H.  7. 
Kel.  83.  h.  Cestuy  que  use  leases,  rendering  rent  to  himself ,  and  dies;  theheir 
shall  have  the  rent.  Yet  in  5  H.  7.  5  b.  the  rent,  icith  the  reversion,  goes  to  the 
feoffees,  though  reserved  to  the  cestuy  que  use ;  yet  in  law  the  feoffees  are  donors; 
so  it  is,  in  effect,  the  feoffees  lease,  rendering  rent  to  the  cestuy  que  use,  it  is  good 
for  themselves,  ivhich  is  stronger.  Sir  Geo.  makes  a  feoff'mentto  theiLseof  him- 
self for  life;  remainder  to  William  Huntley  his  son  and  heir  apparent  and  his 
heirs  :  sir  Geo.  and  William.  Join  in  a  lease  for  years,  rendering  rent  to  sir  Geo. 
his  heirs  and  assigns  :  sir  Geo.  dies.  Resolved,  that  the  reservation  and  the  rent 
are  determined ;  for  William  is  not  in  as  heir,  and  therefore  he  camiot  have  the 
rent.     Huntley's  case,  Palm.  ^oj.     Lord  Nott.  MSS.— [Note  115.] 


214.  a.]  Of  Estates       L.  3.  C.  5.  Sect.  347. 

"  But  if  tico  jointenants  mahe  a  lease  hy  de^d  indented ^  &c."  (1) 

5  E.  4.  4.  a.  This  case  being  by  deed  indented,  is  evident,  and  it  hath  been 
27  H.  8.  16.  touched  before;  but  if  that  two  joyntenants  without  a  deed  in- 
fPost  sTsia. '  dented  make  a  lease  for  life,  reserving  a  rent  to  one  of  them,  it 
Ant.  47.  a.)         shall  enure  to  them  both  in  respect  of  the  joynt  reversion.    And 

so  it  is  of  a  surrender  to  one  of  them,  it  shall  enure  to  them 
both. 
(Ant.  192.  a.  If  two  joyntenants,  the  one  for  life,  and  the  other  in  fee,  joyne 

6  Rep.  15.  in  a  lease  for  life,  or  a  gift  in  tayle,  reserving  a  rent,  the  rent  shall 
^°t-  '^2.  a.  45. a.  gjjm.g  ^0  them  both;  for  if  the  particular  estate  determine,  they 
^  ■    ■       ■  shall  be  joyntenants  again  in  possession.     But  if  tenant  for  life, 

and  he  in  the  reversion  joyn  in  a  lease  for  life,  or  a  gift  in  taile 
by  deed,  reserving  a  rent,  this  shall  enure  to  the  tenant  for  life, 
only,  during  his  life,  and  after  to  him  in  the  reversion,  for  every 

Vide  Sect.  58.  One  grants  that  which  he  may  lawfully  grant ;  and  if  at  the 
common  law  they  had  made  a  feoffment  in  fee  generally,  the 
feoifee  should  have  holden  of  the  tenant  for  life  during  his  life, 

[(f\  Mich.  36       and  after  of  him  in  reversion,  and  so  it  was  holden  [^]  in  the 

&  37  Eiiz.  King's  Bench. 


Sect.  347. 

rpHE  second  tiling  *  is,  that  no  entry  or  reentry  [which  is  all  one) 
may  he  reserved  or  given  (que  nul  entrie  ou  reentrie  (que  est  tout 
un)  t  poit  etre  reserve  ne  clone)  to  any  person,  hut  only  to  the  feoffor,  or 
to  the  donor,  or  to  the  lessor,  or  to  their  heires:  and  such  reentrie  (&  tiel 
X  reenter)  cannot  he  given  to  any  other  person.    For  if  a  man  letteth 

land 

*  is  not  in  Roh.  but  in  L.  and  M.  J  reenter — rent   in  L.  and  31.  and 

■j"  ne  added  in  L.  and  M.  and  Roh.     Roh. 


(1)  The  principle  which  gave  rise  to  this  rule  is,  that  rent  is  considered  as 
a  retribution  for  the  land,  and  is  therefore  payable  to  those  who  would  other- 
wise have  had  the  land. — It  is  to  be  observed,  that  remainder-men  in  a  settle- 
ment, being,  at  first  view,  neither  feoffors,  donors,  lessors,  nor  the  heirs  of 
feoffors,  donors,  or  lessors,  there  seems  to  have  been,  for  some  time  after  the 
statute  of  uses,  a  doubt,  whether  the  rents  of  leases  made  by  virtue  of  powers 
contained  in  settlements,  could  be  reserved  to  them.  In  Chudleigh's  case, 
1  Rep.  139.  it  is  positively  said,  that  if  a  feoffment  in  fee  be  made  to  the  use  of 
one  for  life,  remainder  to  another  in  tail,  with  several  remainders  over,  with  a 
power  to  the  tenant  for  life  to  make  leases,  reserving  the  rent  to  the  reversion- 
ers, and  the  tenant  for  life  accordingly  makes  leases,  neither  his  heirs  nor  any 
of  the  remainder-men  shall  have  the  rent.  But  in  Harcourt  v.  Pole,  1  Anders. 
273.  it  was  adjudged,  that  the  remainder-men  might  distrain  in  these  cases.  And 
in  sir  Thomas  Jones,  35.  the  dictum  in  Chudleigh's  case  is  denied  to  be  law. 
The  determination  in  Harcourt  v.  Pole  will  appear  incontrovertibly  right,  if  we 
consider  that  both  the  lessees  and  remainder-men  derive  their  estate  out  of  the 
reversion,  or  original  inheritance  of  the  settler :  and  therefore  the  law,  to  use 
sir  Edward  Coke's  expression  in  Whitlock's  case,  8  Rep.  71.  will  distribute  the 
rent  to  every  one  to  whom  any  limitation  of  the  use  is  made. — [Note  116.] 


L.  3.  C.  5.  Sect.  347.    upon  Condition.    [214.  a.  214.1). 

land  (Car  si  home  lessa  ||  terre)  to  another  for  term  of  life  hy  indenture^ 
rendring  to  the  lessor  and  to  his  heircs  a  certain  rent,  and  for  default  of 
payment  a  reentry,  ^c.  if  afterward  the  lessor  hy  a  deed  granteth  the 
reversion  of  the  land  to  another  in  fee,  and  the  tenant  for  terme  of  life 
attorne,  ^c.  if  the  rent  he  after  hehind,  the  grantee  of  a  (A)  reversion 
(le  grantee  de  le  reversion)  may  distrein  for  the  rent,  because  that  the 
rent  is  incident  to  the  reversion  ;  hut  lie  may  not  enter  into  the  land,  and 
oust  the  tenant,  as  the  lessor  might  have  done,  or  his  heirs,  if  the  rever- 
sion had  been  contained  in  them,  ^c.  And  in  this  case  the  entrie  is 
taken  aiv ay  forever  ;  for  the  grantee  of  the  reversion  cannot  enter,  caus^i. 
qua  supra.  And  the  lessor  nor  his  heires  cannot  enter  ;  for  if  the  lessor 
might  enter,  then  he  ought  to  he  in  his  former  state  (donques  il  covient 
que  il  serriot  §  en  son  primer  estate)  ^c.  and  this  may  he,  because  he 
hath  aliened  from  him  the  reversion. 

"  rpiIAT  no  entry,  &c."     Here  Littleton  Yddtcth.  one  of  the  (l^Roll.  Abr. 

maxims  of  the  common  law;  and  the  reason  hereof  is,  for  '^'"'' 
avoyding  of  maintenance,  suppression  of  I'ight,  and  stirring  up 
of  suits;  and  therefore  nothing  in  action,  entrie,  or  re-entrie, 
can  be  granted  over ;  for  so  under  colour  thereof  pretended 
titles  might  be  granted  to  great  men,  whereby  right  might  be 
trodden  down,  and  the  weak  oppressed,  which  the  common  law 
forbiddeth,  as  men  to  graut  before  they  be  in  possession. 

[314:."]     ^'  For  defaxdt  ofpaymenta  &^re-entry,  &c."  Here-  (10  Rep.  42.) 
b.     J  upon   is   to   be  collected  divers  diversities.     First, 

between  a  condition  that  requireth  a  re-entrie,  and  a  (^^"'iw^' "in 
limitation  that  ipso  facto  determineth  the  estate  without  any  p^g^^  379^  ^  \ 
entry.  Of  this  first  sort  no  stranger,  as  Littleton  saith,  shall 
take  any  advantage,  as  hath  been  said.  But  of  limitations  it  is 
otherwise.  As  if  a  man  make  a  lease  quosqne,  that  is,  untill 
/.  >S^.  come  from  Rome,  the  lessor  grant  the  reversion  over  to  a 
stranger,  /.  tS.  comes  from  Rome,  the  grantee  shall  take  advan- 
tage of  it  and  enter,  because  the  estate  by  the  express  limitation 
was  determined.  Register,  24G. 

So  it  is  if  a  man  make  a  lease  to  a  woman  quamdiu  casta  vixcrit,  P'-  Com.  27. 
or  if  a  man  make  a  lease  for  life  to  a  widow,  si  tamdiu  in  j)urd  porme'don.  68. 
viduitaie  viveret.  So  it  is  if  a  man  jiaako  a  lease  for  a  100  years  f.  n.  B.  201. 
if  the  lessee  live  so  long,  the  lessor  grants  over  the  reversion,  Lib.  10.  fo.  36. 
the  lessee  dies,  the  grantee  may  enter,  causd  qua  supi-d.  Mary    ai  ing- 

T--'i  T  •  li.  ton  s  case. 

2.  Another  diversitie  is   between  a  condition  annexed  to  a 

freehold,  and  a  condition  annexed  to  a  lease  for  years.  (pio.  242.  a.) 

For  if  a  man  make  a  gift  in  tailc  or  a  lease  for  life  upon  con-  Brooke,  tit.  Con- 
dition, that  if  the  donee  or  lessee  goeth  not  to  Rome  before  such  ^^^^?^  l^ 
a  day  the  gift  or  lease  shall  cease  or  be  void,  the  grantee  of  the  i/oppinion  de 
reversion  shall  never  take  advantage  of  this  condition,  because  Bromley, 
the  estate  cannot  cease  before  an  entrie;  but  if  the  lease  had  ^9^  a^"  pi  24 
been  but  for  yeares,  there  the  grantee  should  have  taken  advan-  pi  Jo^  ^q^ 
tao-e  of  the  like  condition,  because  the  lease  for  yeares  ijyso  facto  11  IL  7. 17. 

bv  the  breach  of  the  condition  without  any  entry  was  void ;  for  l^  ^-  2- 

1  ^  u--iii.  1  J    Done,  10. 

a  lease  for  years  may  begm  witliout  ceremony,  and  so  may  end  ,1  ^  ^^  j^Y)t 


without  ceremony.     And  of  a  void  thing  an  estrangcr  may  take  475.  Noy,  7. 

<'  To 


benefit,  but  not  of  a  voidable  estate  by  entry.  3  Rep.  64.  b.  65 

'  •'  •'  ..  r^     S  Rep.  95. 


Post.  215.  b.) 

11  certelne  in  L.  and  M.  and  Roh.         §  en —  a  in  L.  M.  and  Roh. 

(A)  "a"  seems  to  be  her*  printed  by  mistal^o  instead  of  the. 


21^.  b.  215.  a.]        Of  Estates      L.  3.  C.  5.  Sect.  347. 

"  To  the  feoffor,  or  to  the  donor,  &c.  or  to  their  heirs,  ctr." 
PI.  Com.  ."1.3.  Here  is  to  be  observed  a  diversitie  between  a  reservation  of  a 
314,  in  Seholas-  ^^^^  ^^^  ^  re-entry :  for,  (as  it  hath  been  said)  a  rent  cannot  be 
Lic3>e  "^  c»isc  •/  '  \  / 

(Hob.  loO.)  reserved  to  the  heir  of  the  feoffor,  but  the  heir  may  take  advan- 
tage of  a  condition,  ■which  the  feoffor  could  never  do.  As  if  I 
15  E.  4.  14.  a.  infeoffe  another  of  an  acre  of  ground  upon  condition  that  if  mine 
heir  pay  to  the  feoffee,  &c.  20  shillings,  that  he  and  his  heir 
shall  re-enter,  this  condition  is  good ;  and  if  after  my  decease 
my  heir  pay  the  20  shillings,  he  shall  re-enter,  for  he  is  privy  in 
blood,  and  enjoy  the  land  as  heir  to  me. 

1\  ^'  46  ^b  ^'  "  -^^^  ^^^y  ^^  '^^^  fioffo^'j  <^'c-  ^^  ^^  ^'^^"*  ^eiVs."  Our  author 
^*  °  ■  ■  *  speaketh  here  of  naturall  persons  for  an  example,  for  if  a  bishop, 
archdeacon,  parson,  prebend,  or  any  other  body  politique  or 
corporate,  ecclesiastical  or  temporal,  make  a  lease,  &c.  upon  con- 
dition, his  successor  may  enter  for  the  condition  broken,  for 
they  are  privy  in  right. 

And  so  if  a  man  have  a  lease  for  years  and  demise  or  grant 
the  same  upon  condition,  &c.  and  die,  his  executors  or  adminis- 
trators shall  enter  for  the  condition  broken,  for  they  are  privie 
in  right,  and  represent  the  person  of  the  dead. 
[y]  27  H.  8. 1.  [-_yj  J3@»lf  cestvjj  que  use  had  made  a  lease  for  years,  r5il5. 1 

&c.  upon  condition,  the  feoffees  should  not  enter  for  L     ^-     J 
the  condition  broken,  for  they  are  privie  in  estate,  but 
not  privie  in  blood. 
(4  Rep.  52.  Another  diversitie  is  in  case  of  a  lease  for  years,  where  the 

Ant.  211.  b.)  ^     condition  is  that  the  lease  shall  cease,  or  be  void,  as  is  aforesaid, 
3R°p.  w!^'^'^^"  and  where   the  condition  is,  that  the  lessor  shall  re-enter,  for 
there  the  grantee,  as  Littleton  saith,  shall  never  take  benefit  of 
the  condition. 
Pl.Com.  Brown-       And  it  is  to  be  observed,  that  where  the  estate  or  lease  is  ipso 
ing's  case,  1.36.   yj^^^o  void  by  the  condition   or  limitation,  no  acceptance  of  the 
rent  after  can  make  it  to  have  a  continuance  :  otherwise  it  is  of 
an  estate  or  lease  voydable  by  entrie  (1). 

Another  diversitie  is  between   conditions  in  deed,  whereof 

sufficient  hath  been   said  before,  and  conditions  in  law.     As  if 

a  man  make  a  lease  for  life,  there  is  a  condition  in  law  annexed 

unto  it,  that  if  the  lessee  doth  make  a  greater  estate,  &c.  that 

then  the  lessor  may  enter.   *0f  this  and  the  like  conditions  in 

law,  which  do  give   an  entrie  to  the  lessor,  the  lessor  himself 

and  his   heirs   shall  not  only  take  benefit  of  it,  but  also  his 

assignee  and  the  lord  by  escheat,  every  one  for  the  condition  in 

(1  Sann.  2S7,       law   broken  in  their    own   time.     Another   diversity  there   is 

238,239,  240,      between   the  judgment  of  the  common  law,  whereof  Littleton^ 

^^^'1    Ti  Q         wrote,  and  the  law  at  this  day  by  force  of  the  statute  [*]  of 

S.?4  in  le       32  H.  8.  cap.  34.     [a]  For  by  the  common  law  no  grantee  or 

preamble.  assignee  of  the  reversion  could  (as  hath  been  said)  take  advantage 

(a)  26  H.  6.  tit.    ^f  ^  re-entrie  by  force  of  any  condition.     For  at  the  common 

Ent.  con.  49.       ^^^   .^  ^  ^^^  ^^^  ^^^^  ^  ^q^^q  for  life  reserving  a  rent,  &c.  and 

'  if 


(1)  Because  the  acceptance  of  rent  cannot  made  a  new  lease,  and  the  old 
one  was  determined ;  but  the  acceptance  of  the  rent  is  a  sufficient  declaration, 
that  it  is  the  lessor's  will  to  continue  the  lease,  for  he  is  not  entitled  to  the 
rent  but  by  the  leasee.  Note  to  the  l\th  edition.  And  see  Symson  v.  Butcher, 
Doug.  Rep.  51 ;  and  the  cases  of  Wynne  v.  Humphreys,  and  Carter  v.  Stra- 
than,  reported  in  the  notes  of  that  case. — [Note  117.] 


L.  3.  C.  5,  Sect.  347.       upon  Condition.  [215.  a. 

if  the  rent  be  behind  a  re-entrie,  and  the  lessor  grant  the  rever- 
sion over,  the  grantee  should  take  no  benefit  of  the  condition, 
for  the  cause  before  rehearsed.  But  now  by  the  said  statute  of 
32  II.  8,  the  grantee  may  take  advantage  thereof,  and  upon  (Plo- 175.  b.) 
demand  of  the  rent,  and  non-payment,  he  may  re-enter.  By 
•which  act  it  is  provided,  that  as  well  every  person  which  shall 
have  any  grant  of  the  king  of  any  reversion,  &c.  of  any  lauds, 
&c.  which  pertained  to  monasteries,  &c.  as  also  all  other  persons 
being  grantees  or  assignees,  &c.  to  or  by  any  other  person 
or  persons,  and  their  heirs,  executors,  successors,  and  assignees 
shall  have  like  advantage  against  the  lessees,  &c.  by  entry  for 
non-payment  of  the  rent,  or  for  doing  of  waste  or  other  forfeiture, 
&c.  as  the  said  lessors  or  grantors  themselves  ought  or  might 
have  had.  Upon  this  act  divers  resolutions  and  judgments  have 
been  given,  which  are  necessary  to  be  known.  - 

1.  That  the  said  statute  is  generall,  viz.  [i]  that  the  grantee  r,-,  p,  ^ 
of  the  reversion  of  every  common  person,  as  well  as  of  the  king.  Hill  and 
shall  take  advantage  of  conditions.  Grange's  case. 

2.  That  the  statute  doth  extend  to  grants  made  by  the  sue-  ^^{''-iVl' 
cessors  of  the  king,  albeit  the  king  be  only  named  in  the  act.       n  Eliz.  180. 

3.  That  where  the  statute  si>eaketh  of  lessees,  that   the  same  Dier,  ibid, 
doth  not  extend  to  gifts  in  tail.  J^*  E^^i|- 

4'.  That  where  the  statute  speaks  of  grantees  and  assignees  of  Wynter'scase. 
the  reversion,  [fZ]  that  an  assignee  of  part  of  the  state  of  the  [</]  PI.  Com. 
reversion  may  take  an  advantage  of  the  condition.     As  if  lessee  jJ^^'^^.^^J'^?'^  "'^^'^ 
for  life  be,  &c.  and  the  reversion  is  granted  for  life,  &c.     So  if  Mich!  u  &  *^''' 
lessee  for  yeares,  &c.  be,  and   the  reversion  is  granted  for  years,  15  Eliz.  .309. 
the  grantee   for  years  shall  take  benefit  of  the  condition  in  (^  ^°i^-  ^'^'■• 
respect  of  this  word  [executors)  in  the  act.  ^^^^  ^f^^  g^   '  ^' 

1  Roll.  Abr.  471.     Mo.  93.)     Vide  7  E.  3.  54.     Simile  adjudged  in  Communi  Banco  in 
the  Lord  Dyer's  time.  P.  17  Eliz.  Mich.  14  &  15  Eliz.  Dyer,  309.  adjudged,  Winter's 


case. 


5.  That  a  grantee  of  part  of  the  reversion  shall  not  [e]  take  [e]  Lib.  5.  fo.  54. 

advantage  of  the  condition :  as  if  the  lease  be  of  three  acres,  w"^?^*^-'^  ^^^^' 
.°  ,  -.:  .  ,,  ..  iV.  Winters  case 

reserving  a  rent  upon  condition,  and  the  reversion  is  granted  of  ubi  supra. 

two  acres,  the  rent  shall  be  apportioned  by  the  act  of  the  par-  Knight's  case 

ties,  but  the  condition  is  destroyed,  for  that  it  is   entire  and  "^^  supra. 

against  common  right. 

6.  That  in  the  king's  case,  the  condition  in  that  case  is  not 
destroyed,  but  remains  still  in  the  king. 

7.  By  act  in  law  a  condition  may  be  apportioned  in    the  case 

of  a  common  person ;  as  if  a  lease  for  years  be  made  of  two  Lib.  4.  fo.  120. 
acres,  one  of  the  nature  of  Burrough  English,  the  other  at  the  Bumper's  case, 
common  law,  and  the  lessor  having  issue  two  sons,  dieth,  each  29  ^3^0*' m^' ^26' 
of  them  shall  enter  for  the  condition  broken,  and  likewise  a  203.)       °'     *"' 
condition  shall  be  apportioned  by  the  act  and  wrong  of  the  Resolved  in 
lessee,  as  hath  been  said  in  the  chapter  of  Rents  (A).  P^'^h^^n^pr 

8.  If  a  lease  for  life  be  made,  reserving  a  rent  upon  condition,  in'^Communi  '^' 
&c.  the  lessor  levies  a  fine  of  the  reversion,  he  is  grantee  or  Banco.  Mallo- 
assignee  of  the  reversion ;  but  without  atturnment  he  shall  not  ""^'^  ^^^^>  ^i^-  5; 
take  advantage  of  the  condition,  for  the  makers  of  the  statute       '    ' 
intended  to  have  all  necessary  incidents  observed,  otherwise  it 

might  be  mischievious  to  the  lessee(2).  9.  There 

(A)  See  ante  148.  h.  near  the  end. 

(B)  This  act  is  styled  4  -inn.  c.  16.  in  Ruffhead's  edition  of  the  Statutes  at  large. 

(2)  Attornment  being  taken  away  per  4  &  5  (B)  Ann.  c.  16.  the  law  seems 
to  be  otherwise  now.     Note  to  the  llth  edition. — [Note  118.] 
Vol.  XL— 13 


215,  a.  215.  b.]  Of  Estates      L.  3.  C.  5.  Sect.  347. 


9.  There  is  a  diversity  between  a  condition  that  is  compul- 
(1  Roll.  472.  sory,  and  a  power  of  revocation  that  is  voluntary  :  for  a  man  that 
Post'  237'  265  b   ^^*^  ^  power  of  revocation  may  by  his  own  act  extinguish  his 

1  Kep.  112,  "   '  power  of  revocation  in  part,  as  by  levying  of  a  fine  of  part;  and  ■ 
113.)  yet  the  power  shall  remain  for  the  residue,  because  it  is  in 

nature  of  a  limitation,  and  not  of  a  condition;  and  so  it  was 
[b]  14  Eliz.  resolved  [h']  in  the  earle  of  Shrewsburie's  case  in  the  court  of 

Dyer,  39.  wards,  Fasch.  39  Eliz.  and  Mich.  40  &  41  Miz. 

10.  If  the  lessor  bargain  and  sell  the  reversion  by  deed 
(iRep  173.  b.  infientcd  and  inrolled,  the  bargainee  is  not  in  the  per  by  the 
(1  Roil.  Abr.        bargainor,  and  yet  he  is  an  assignee  within  the  statute. 

•122.^  Jg^^^So  if  the  lessor  grant  the  reversion  in  fee  to  the  use  ("^151 

(3  Rep.  62.  b.)     ^f  j^   j^^^  ^jg  i^eirs,  A.  is  a  sufficient  assignee  within  L    '^^    J 
the  statute,  because  he  comes  in  by  the  act  and  limita- 
tion of  the  partfe,  albeit  he  is  in  the  post,  and  the  words  of  the 
statute  be,  to  or  hy,  and  they  be  assignees  to  him,  although  they 
be  not  by  him  :  but  such  as  come  in  merely  by  act  in  law,  as  the 
lord  of  the  villeine,  the  lord  by  escheat,  the  lord  that  entreth  or 
claimeth  for  mortmaine,  or  the  like,  shall  not  take  benefit  of  this 
statute. 
Lib.  5.  fo.  113.         11.  If  the  lessor  in  the  case  before  bargain  and  sell  the  rever- 
Mallorie's  case,    gjon  by  deed  indented  and  inrolled,  or  if  the  lessor  make  a  feofi- 
France'sVase '     ^^^nt  in  fee,  and  the  lessee  re-enter,  the  grantee  or  feoffee  shall 
(Cro.  Jac.  9.        not  take  any  advantage  of  any  condition,  without  making  notice 
i  Roll.  46.)         to  the  lessee. 

12.  Albeit  the  whole  words  of  the  statute  be,  for  non-payment 

of  the  rent,  or  for  doing  of  wast  or  other  forfeiture,  yet  the  gran- 

\nd  so  was  it       *^^^  °^'  ^^^ig^^es  shall  not  take  benefit  of  every  forfeiture,  by 

resolved  inWj-n-  forco  of  a  condition,  but  only  of  such  conditions  as  either  are  in- 

t-er'scase,  Mich,  cident  to  the  reversion,  as  rent,  or  for  the  benefit  of  the  state,  as 

an    lo  Ehz.    ^^^  ^^  doing  of  wast,  for  keeping  the  houses  in  reparations,  for 

in  Communi  p  '      .  i    ■i-°  i  r  ■  c  A 

Hanco,  and  of-  making  01  lences,  scouring  oi  ditches,  lor  preserving  ot  woods, 
tentimes  since,  or  sucb  like,  and  not  for  the  payment  of  any  sum  in  grosse,  de- 
( pf  ^  24^^"^'"  ^^^'  ^^'^^^T  ^^  come,  wood,  or  the  like,  so  as  other  forfeiture  shall  be 
1  Saun.210.  taken  for  other  forfeitures  like  to  those  examples  which  were 
1  Leo.  62.)  there  put,  (^videlicet)  of  payment  of  rent,  and  not  doing  of  wast, 

which  are  for  the  benefit  of  the  reversion  (1). 

Sect. 

(1)  Jt  has  aha  been  held  upon  this  statute,  that  if  a  man  makes  a  lease  for 
i/ears  upon  condition,  that  if  the  rent  shoidd  he  in  arrear ,  it  should  he  laiofulto 
the  lessor  and  his  assigns  to  re-enter,  and  then  the  lessor  assig^is  the  reversion 
over,  and  the  lessee  attorns,  and  the  lessor  dies,  the  grantee  shall  not  take  advan- 
Inge  of  the  condition  for  ivant  of  these  toords  '^  his  heirs,"  in  the  reservation  of 
'he  condition  ',  the  condition  heing  that  he  and  and  his  assigns  shall  enter.  By 
Brown,  serj.  who  moved  the  case  in  C  B.  ex  relatione  T.  Hurst — It  ajypears 
therefore,  that  this  reservation  of  condition  is  to  he  resemhled  to  such  a  reserva- 
tion of  rent  as  is  imentioned  hefore,  in  page  47.  a.  which  determined  hy  the  death 
of  the  lessor  ;  hut  that  nevertheless  the  grantee  shall  have  advantage  of  the  con- 
dition, during  the  life  of  thegrantor,  hy  the  32  E.  8.  Infra,  215.  h.  So  note, 
ihe  grantee  of  part  of  the  reversion  in  the  whole  shall  take  advantage  of  a  con- 
dition; for  to  this  purpose  the  grantee  of  a  reversion  for  life  or  years  is  an 
'issignee  within  the  32  //.  8,  who  may  enter  :  ivhich  nevertheless  is  very  different 
in  the  case  of  a  warranty  ;  for  a  lessee  for  life,  who  has  hut  part  of  the  eMate 
in  the  whole,  is  not  assignee  for  voucher.  Infra,  385.  h.  On  the  other  hand,  the 
grantee  of  the  whole  estate  in  reversion  in  part   is  not  an  assignee  vjithin  the 

32  iT.  8  : 


L.  3.  C.  5.  Sect.  348.      upon  Condition.  [215.  b. 


Sect.  348. 

ALSO,  if  lord  and  tenant  be,  and  the  tenant  make  a  lease  for  term  of 
life,  rendering  to  the  lessor  and  his  heires  such  an  annuall  rent,  and 
for  default  of  payment  a  re-e7itrie,  ^c.  if  after  the  lessor  dyeth  without 
heir  during  the  life  of  the  tenant  for  life,  whereby  the  reversion  commeth 
to  the  lord  by  ivay  of  escheat,  and  after  the  rent  of  the  tenant  for  life  is 
behiyid,  the  lord  may  distrein  the  tenant  for  the  rent  behind ;  but  he 
may  not  enter  into  the  land  by  force  of  the  conditioji,  ^c.  because  that 
he  is  no  heir  to  the  *  lessor,  ^c- 

^^  rpO  the  lord  hy  way  ofesclieat,  &c."  IF.  N.  B.  144.  b. ) 

Note,  here  it  appeareth,  that  the  lord  by  escheat  shall 
distreine  for  the  rent,  and  yet  the  rent  was  reserved  to  the  lessor  19  E.  3. 
and  his  heires ;  but  both  assignees  in  deed  and  assignees  in  law  ^*'s°6i'^j  l*- 
shall  have  the  rent,  because  the  rent  being  reserved  of  inherit- 
ance to  him  and  his  heirs,  is  incident  to  the  reversion  and  goeth 
with  the  same.     But  if  the  rent  were  reserved  to  him  and  his 
assigns,  and  the  lessor  assigned  over  the  reversion,  and  dyeth, 
the  assignee  shall  not  have  the  rent  after  his  decease,  because  the 
rent  determined  by  his  death,  for  that  it  was  not  reserved  to  (Ant.  l.b.47.  a.) 
him,  his  heirs,  and  assigns. 

"  But  he  may  not  enter  into  the  land  by  force  of  the  condition, 

Hereby  it  appeareth,  that  at  the  common  law  neither  assigns 
in  deed  nor  assigns  in  law  could  have  taken  the  benefit  of  either 
entrie  or  re-entrie,  by  force  of  a  condition. 

"  Because  that  he  is  not  heir  to  the  lessor,  d'c." 

The  gardian  in  chivalrie  [/]  or  in  socage  shall  in  the  right  of  [/]  21 II.  7. 18. 
the  heir  take  benefit  of  a  condition  by  etitrie  or  re-entrie,  by  the  j^  ^^^-  ^*^- 
common  law  and  so  it  is  here  implyed.  Gard.  113, 114. 

18  Ass.  pi.  18.  lib.  7.  fol.  7.     The  earl  of  Bedford's  case. 

Sect. 

*  lessor — feoffor  in  L.  and  M.  and  Roh. 


32  H.  8  :  as  if  the  reversioner  in  fee  of  4  acres  grants  2  acres  in  fee,  the 
grantee  cannot  enter  ;  which  also  is  very  different  in  the  case  of  xcarranty,  for 
the  feoffee  of '2  acres  is  an  assignee  for  voxu-hcr.  Infra  315  a. — Lord  Not.  MSS. 
If  a  mortgagor  and  mortgagee  make  a  lease,  in  which  the  covenants  for  the 
rent  and  repairs  are  only  with  the  mortgagor  and  his  assigns,  the  assignee  of 
the  mortgagee  cannot  maintain  an  action  for  the  breach  of  these  covenants ; 
because  they  are  collateral  to  his  grantor's  interest  in  the  land,  and  therefore 
do  not  run  with  it.  If  a  tenant  for  ycares  lease  for  a  less  term,  and  assign  his 
reversion,  and  the  assignee  take  a  conveyance  of  the  fee,  by  which  his  former 
reversionary  interest  is  merged,  the  covenants  incident  to  that  reversionary 
interest  are  thereby  extinguished.  Webb  v.  Russell,  3  Durn.  and  East,  393. — 
In  the  former  case,  the  mortgagor  may  maint-.-.in  an  action  on  the  breach  of  the 
eovenant.     Stokes  v.  RusselT,  Tbid.  678. — [Note  llSt-] 


216.  a.]  Of  Estates         L.  3.  C.  5.  Sect.  349. 

piow!^48LJ  J8®°  Sect.  349.  a.  * 

(Ant.  26.) 

A  LSO,  if  land  he  granted  to  a  man  for  term  of  two  years  (si  terre 
soit  graunt  a  un  *  home  pur  terme  de  deux  ans)  upo7i  such  condi- 
tion  that  if  he  shall  pay  to  the  grantor  within  the  said  tivo  yeares  fortie 
marhs^  then  (f  adonques)  he  shall  have  the  land  to  him  and  his  heirs, 
4-0.  in  this  ease  if  the  grantee  enter  by  force  of  the  grant,  without  any 
liverie  of  seisin  made  unto  him  hy  the  grantor,  and  after  he  payeth  the 
grantor  the  forty  marks  ivithin  the  two  years,  yet  he  hath  nothing  in 
the  land' hut  for  term  of  two  years,  because  no  liverie  of  seisin  ivas  made 
unto  him  at  the  beginning.  For  if  he  should  have  a  freehold  and  fee  in 
this  case  because  he  hath  performed  the  condition,  then  he  should  have  a 
freehold  by  force  of  the  first  grant,  where  no  liverie  of  seisin  ivas  made 
of  this  which  would  be  inconve7iient  (que  serroit  t  inconvenient,  &c.)  ^c. 
But  if  the  grantor  had  onade  liverie  of  seisin  to  the  grantee  by  force  of  the 
grant,  then  should  the  grantee  have  the  freehold  and  the  fee  upon  the 
same  condition. 

HERE  six  things  are  to  he  observed.  First,  Littleton  here 
putteth  an  example  of  a  condition  precedent  (1).  Secondly, 
that  such  a  condition  which  createth  an  estate  may  be  made  by 
paroll  without  deed.  Thirdly,  the  liverie  of  seisin  in  this  case 
Vide  Sect.  60.  must  he  made  before  the  lessee  enter,  (as  Littleton  here  saith  at 
(Aut.  48.  a.)  ^jjg  beginning)  for  after  his  entrie  liverie  made  to  him  that  is  in 
possession  is  void,  as  hath  been  said.  Fourthly,  that  if  no 
liverie  of  seisin  be  made,  that  no  fee  simple  doth  pass,  although 
the  money  be  paid.  Fifthly,  that  it  is  inconvenient  that  the  fee 
simple  should  pass  in  this  case  without  liverie  of  seisin.  Sixthly, 
that  argiwientum  ab  incovenienti,  is  forcible  in  law,  as  often 
hath  been  and  shall  be  observed  (A).  See  more  of  this  kind  of 
condition  in  the  Section  next  following  (2). 

'*  And  to  his  heirs,  d;c."     Here  ((&c.)  implyeth  an  estate  in 
taile,  or  a  lease  for  life. 

Sect. 

*  home  not  in  L.  and  M.  or  Roh.  |  inconvenient,  &c. — encontre   rea- 

I  que  added  in  L.  and  M.  and  Roll,    son  in  L.  and  31.  and  Roh. 

(A)  See  ante  66.  a.  and  note  1  there. 

(1)  See  some  observations  on  conditions  precedent,  and  conditions  subsequent, 
in  the  last  note  upon  this  chapter. 

(2)  The  necessity  which  there  was  in  the  old  law,  that  there  should  always 
bo  some  person  to  do  the  feudal  duties,  to  fill  the  possession,  and  to^  answer 
the  actions  which  might  be  brought  for  the  fief,  introduced  the  maxim,  that 
the  freehold  could  never  be  in  abeyance.  See  2  Wilson,  Bund  v.  West,  165. 
But  it  was  admitted,  that  there  were  some  cases  in  which  the  inheritance, 
when  separated  from  the  freehold,  might  be  so.  The  question  agitated  in  the 
C.)mmentary  upon  this  and  the  following  Section,  arises  from^  the  difficulty  of 
ascertaining  where  the  freehold,  in  the  case  mentioned  by  Littleton,  is  to  be. 
By  the  livery,  it  is  taken  out  of  the  grantor  j  it  must  therefore  vest  in  the 

feofiee. 


L.  3.  C.  5.  Sect.  350.        upon  Condition.  [216.  b. 


pi6.j  |G»  Sect.  350. 

ALSO,  if  land  he  granted  to  a  man  for  term  of  five  years^,  upon 

condition,  that  if  he  pay  to  the  grantor  loithin  the  ttvo  first  years 

forty  marks,  that  then  he  shall  have  fee,  or  othertvise  hut  for  term  of  the 

five  years,  and  livery  of  seisin  is  made  to  him  by  force  of  the  grant,  now 

he- 

feoffee.  Yet  it  seems  difficult  to  conceive  how  it  could  be  in  the  grantee,  con- 
sistently with  the  term  of  years.  The  opinion  adopted  by  Littleton  and  Sir 
Edward  Coke  is  conformable  to  what  is  said  in  Lord  Stafford's  case,  8  liep.  73.  b. 
— It  is  to  be  observed,  that  though  by  conveyance  at  common  law  the  freehold 
necessarily  passes  out  of  the  grantor;  and  that  if  there  is  not  some  person  in 
being  in  whom  it  can  immediately  vest,  the  conveyance  is  voyd ;  that  is  not 
the  case  with  respect  to  wills,  conveyances  under  the  statute  of  uses,  trusts  in 
equity,  or  grants  of  rents  de  novo.  For,  as  to  wills ; — there  is  no  immediate 
transfer  of  the  freehold,  as,  upon  the  death  of  the  testator,  it  vests  in  the  heir 
to  janswcr  the  lord's  services  and  the  stranger's  writs.  As  to  conveyances 
under  the  statute  of  uses ; — till  there  is  some  person  in  being  in  whom  the  use 
can  vest,  the  possession  is  not  altered,  but  continues  in  the  feoffor  and  his 
heirs.  See  1  Inst.  23.  As  to  trusts,  the  legal  estate,  upon  which  the  trust  is 
charged,  immediately  vests  and  continues  in  the  trustee ;  and  as  to  rents  de 
novo,  the  tenant  continues  in  possession  of  the  land  out  of  which  they  issue. 
However,  it  is  to  be  observed,  that  in  cases  of  wills,  uses,  and  trusts,  if  it  be 
■  inconsistent  with  the  estates  e.rpresss?y  declared,  that  the  freehold  should  remain 
with  the  party  (as  if  he  has  a  term  of  years  expressly  given  him),  the  law  will 
not  give  him,  by  implication,  an  estate  of  freehold,  if,  consistently  with  the 
rules  of  law,  it  can  be  considered  to  reside  elsewhere.  See  Pybus  (;.  Mitford, 
1  Vent.  372.  Adams  v.  Savage,  2  Salk.  679.  Penhay  v.  Hurrel,  2  Vern.  370. 
Davies  v.  Speed,  2  Salk.  675.  In  the  same  manner,  if  a  person  limits  his  estate 
to  such  uses  as  he  shall  appoint ;  and  in  the  meantime,  and  until  he  makes  an 
appointment,  to  the  use  of  himself  and  his  heirs ;  or  if  he  limits  it  to  the  use 
of  himself  for  life,  and  after  his  decease,  to  such  uses  as  he  shall  appoint,  and 
for  want  of  appointment,  to  the  use  of  his  right  heirs ; — in  both  these  cases 
the  fee  simple  continues  to  reside  in  the  settler,  subject  to  be  divested  from 
him  by  an  exercise  of  his  power  of  appointment.  If  the  settler  makes  an 
appointment,  a  new  use  springs  up  and  vests  in  the  appointee  ;  the  fee  origi- 
nally limited  to  the  settler  ceases ;  and  from  that  time,  speaking  generally,  the 
use  appointed  under  the  power  takes  effect,  in  the  same  manner  as  if  it  had 
been  inserted  in  the  original  deed,  in  the  place  of  the  power.  But,  if  no 
appointment  is  made,  the  fee,  from  being  determinable,  becomes  simple  and 
absolute.  It  may  be  objected,  that  in  the  second  of  these  cases,  an  estate  for 
life  is  expressly  limited  to  the  settler,  and  that  the  fee  is  therefore  put  in 
abeyance.  But  in  the  case  of  Leonard  Lovie,  10  Hep.  78.  where  the  estate 
was  devised  to  Leonard  Lovie  expressly  for  his  life,  without  impeachment  of 
waste,  and  afterwards  to  such  uses  as  he  should  appoint,  and  after  several 
intermediate  remainders  to  the  use  of  his  right  heirs,  it  was  resolved,  that  the 
fee  vested  in  him  till  the  appointment  was  made.  See  also  sir  Edward  Cleere's 
case,  6  Rep.  18.  The  doctrine  which  is  the  subject  of  this  note  has  received 
a  full  investigation  in  the  late  case  of  Maundrell  v.  Maundrell,  7  Ves.  jun.  567. 
and  10  Ves.  jun.  246.  and  is  very  ably  discussed  by  Mr.  Sugden,  in  his  Practical 
Treatise  of  Powers,  page  (266.  1st.  cd.)  332.  2nd  ed.— [Note  119.] 


(5  Rep.  9S.) 


31  E.  1.  tit. 
FeofFements 
&  faits,  119. 


216.  b.  217.  a]       Of  Estates         L.  3.  C.  5.  Sect.  350. 

Jie  hath  a  fee  simple  conditionall,  ^c.  And  if  in  this  case  the  grantee  do 
not  pay  to  the  grantor  thefortie  marJcs  within  the  first  two  years,  then 
immediately  after  the  said  two  years  past,  the  fee  and  the  freehold  is  and 
shall  be  adjudged  in  the  grantor,  because  that  the  grantor  cannot  after 
the  said  two  years  presently  enter  ujyon  the  grantee,  for  that  the  grantee 
hath  yet  title  by  three  yeares  to  have  and  occupy  the  land  by  force  of  the 
same  grant.  And  so  because  that  the  condition  of  thep>art  of  the  grantee 
is  broJce7i,  a7id  the  grantor  cannot  enter,  the  law  will  'put  the  fee  and  the 
freehold  in  the  grantor.  For  if  the  grantee  in  this  case  makes  wast,  then 
after  the  breach  of  the  condition,  cj-c.  and  after  the  two  years,  the  grantor 
shall  have  his  tvrit  of  toast e.  And  this  is  a  good  proof  then,  that  the 
reversion  is  in  him,  ^c. 

"  lUO  W,  he  hath  a  fee  simple  conditionall,  &c."  The  like  is  of 
an  estate  in  taile,  or  for  life.  Many  are  of  opinion  against 
Littleton  in  this  case,  and  their  reason  is,  because  the  fee  simple 
is  to  commence  upon  a  condition  precedent,  and  therefore  cannot 
pass  until  the  condition  be  performed;  and  that  here  Littleton 
of  a  condition  precedent  doth  (before  the  performance  thereof) 
make  it  subsequent :  and  for  proof  of  their  opinion  they  avouch 
many  successions  of  authorities  that  no  fee  simple  should  pass  be- 
fore the  condition  performed.  31 E.  1.  tit.  Feoffments  &  faits,  119. 
^4.  letteth  a  mannor  to  B.  for  term  of  twenty  yeaxs,  and  the  deed 
would,  that  after  the  term  of  twenty  years  that  B.  and  his  heirs 
should  hold  the  said  mannor  for  ever  by  twelve  pounds  rent,  A. 
taketh  a  wife,  and  dyeth  before  the  term  be  past,  the  wife  of  A. 
demands  dower.  And  there  Wayland  chief  justice  saith,  that 
the  fee  and  the  frank-tenement  doth  repose  in  the  person  of  the 
lessor  untill  the  term  be  past,  for  before  that  the  condition  is 
not  performed ;  for  if  the  lessor  had  aliened  the  land  before  the 
end  of  the  term,  B.  should  not  recover  by  a  writ  of  assise,  and 
by  the  death  of  the  lessor  the  chief  lord  should  have 
had  the  wardship  jg®""  of  the  heir  of  the  lessor,  and  by  r317."j 
judgment  the  wife  recovered  dower,  for  the  termor  L  ^-  J 
could  not  have  fee,  all  which  be  the  words  of  that 
book. 

12  E.  2,  tit.  Voucher,  265.  I.  letteth  lands  to  B.  for  eight  years, 
and  if  the  lessor  pay  not  a  hundred  marks  to  the  lessee  at  the 
end  of  the  term,  that  then  he  shall  have  fee :  by  the  non-pay- 
ment of  the  money,  the  fee  and  franktenement  accrueth  to  him, 
and  before,  the  lessee  cannot  be  impleaded  in  SLpra;cipe,  neither 
shall  he  vouch. 

[.r]  7  E.  3.  10.  I.  letteth  certain  lands  to  i\".  for  the  term 
of  ten  years,  rendring  a  hundred  shillings  by  the  year  to 
him  and  his  heirs,  and  granted  by  deed,  that  if  he  held  the 
lands  over  to  him  and  his  heirs,  that  he  should  render  by  the 
year  twenty  pounds :  the  lessor  during  the  term  brought  an 
action  of  debt  for  the  rent.  And  there  Berle  chief  justice 
of  the  common  pleas  giveth  the  rule,  that  during  the  term 
the  lessee  had  but  for  years,  and  therefore  the  action  of  debt 
maintenable. 

[.y]  44  E.  3.  tit.  Attaint.  22,  and  43  Ass. p.  41.  D.  and  A.  in- 
feoff  the  two  plaintiffs  in  the  assise,  they  let  those  lands  to  S. 
for  term  of  nine  yeares,  upon  condition,  that  if  the  plaintif  in 
the  assise  pay  a  hundred  shillings  to  *S'.  during  the  term,  that  S. 
shall  have  it  but  for  nine  years,  and  if  they  pay  it  not,  that  *S'. 
shall  have  fee.     >S'.  continueth  his  estate  by  one  year,  and  after 

granteth 


12  E.  2.  tit. 
Vouclier,  265. 
(8  Kep.  73. 
Plow.  481.) 


[x]  7  E.  3.  10. 
PI.  Com. 
Saye's  case,  272, 


[y]  44  E.  3.  tit. 
Attaint.  22. 
43  Aas.  p.  41. 


L.  3.  C.  5.  Sect.  350.       upon  Condition.  [217.  a. 

granteth  his  estate  to  one  H.  which  H.  continueth  his  estate 
by  two  years,  and  granteth  the  residue  of  the  term  to  i?.  and 
within  the  term  of  nine  years  the  plaintiffs  in  the  assise  pay  the 
hundred  shillings  to  iS.  R.  continueth  his  possession  after  the 
term,  and  infeoffeth  D.  which  infeoifuth  the  lord  Furnivall 
against  whom  and  others,  without  any  claim  or  entry  made  by 
the  plaiutifs  after  the  nine  years  ended^  he  brought  his  assise, 
and  after  adjournment  recovered. 

[z]  10  E.  3.  39  and  40.     R.  doth  let  certain  lands  to  /.  for  W  lO  E.  3.  39, 
term  of  twelve  yeares,  and  in  suretie  of  his  term  he  maketh  a  ^.^*   .^^^  ^^'  ^^' 
charter  of  the  fee  upon  condition,  that  if  he  be  disturbed  within  pi."  com. 
the  term,  that  he  cannot  hold  the  lands  untill  the  end  of  the  Browning's  case, 
term,  that  then  he  shall  hold  the  lands  to  him  and  his  heirs  for  ■^^^• 
ever,  and  seisin  was  delivered  upon  the  one  charter  and  the 
other.     R.  within  the  term  plowed  and  sowed  the  land,  and 
took  the  profits  against  the  will  of  /.  and  /.  upon  this  disturb- 
ance had  fee  and  recovered  in  assise. 

6  ^.  2  tit.  Quid  Jn7-is  clamat.  20.  If  a  lease  be  made  for  a  6  R.  2.  tit.  Quid 
term  upon  condition,  if  the  lessee  pay  a  certain  sum  within  the  J^^'^s  clamat.  20. 
term,  that  then  he  shall  have  fee,  if  he  pay  the  money  he  shall 
have  the  fee,  but  if  before  the  day  of  payment  the  lessor  levieth 
a  fine  to  another,  the  lessee  ought  to  attorn  by  protestation, 
and  if  he  pay  the  money,  the  conusee  shall  have  it,  and  the 
conusee  shall  have  the  rent  reserved  until  the  day  of  payment; 
and  if  land  be  letten  for  term  of  years  upon  condition,  that 
if  the  lessee  be  ousted  within  the  term  by  the  lessor,  that  he 
shall  have  fee,  if  he  be  ousted,  he  shall  have  fee  by  the  condi- 
tion, and  notwithstanding  he  shall  not  have  any  assise,  but  he 
must  have  possession  after  the  ouster,  and  of  this  he  shall  have 
an  assise. 

And  generally  the  books  (*)  are  cited  that  make  a  diversitie  (•••)  15  H.  7.  i.  a. 
between  a  condition  precedent  and  a  condition  subsequent.  s\?^'fi^'fi^h*  ^^' 

And  lastly,  they  cite  Dier,  [a]  10  Eliz.  281.  and  in  Say  audi  Lj  byer, 
Fuller's  case,  PL  Com.  272.  the  opinions  of  Dyer  and  Browne.  10  Eliz.  281. 

Notwithstanding  all  this  there  are  those  that  defend  the  opin-  ^^-  ^°°^-  272. 
ion  of  Littleton,  both  by  reason  and  authority.     By  reason,  for 
that  by  the  rule  of  law  a  liverie  of  seisin  must  pass  a  present 
freehold  to  some  person,  and  cannot  give  a  freehold  in  futuro,  as  Vide  Litt.  in 
it  must  do  in  this  case,  if  after  liverie  of  seisin  made  the  free-  ^^^^  chapter  of 
hold  and  inheritance  should  not  pass  presently,  but  expect  untill  I^ares'^CA^ 
the  condition  be  performed ;  and  therefore  if  a  lease  for  years  be 
made  to  begin  at  Mieliaelmas  the  remainder  over  to  another  in 
fee,  if  the  lessor  make  liverie  of  seisin  before  Michaelmas,  the 
liverie  is  void,  because  if  it  should  workc  at  all   it  must  take 
effect  presently,  and  cannot  expect. 

Secondly,  they  say  that  when  the  lessor  makes  liverie  to  the  (i  Rep.  130. 
lessee,  it  cannot  stand  with  any  reason   that  against   his   own  2Rep.  C7.  a. 
liverie  of  seisin  a  freehold  should  remain  in  the  lessor,  seeing  i^"*'-.  3r3.  a.) 
there  is  a  person  able  to  take  it.     But  if  a  man  by  deed  make 
a  lease  for  years,  the  remainder  to  the  right  heirs  of  /.  S.  and 
the  lessor  make  liverie  to  the  lessee  aenindum  forman  cliarta', 
this  liverie  is  voyd,  becau.se  during  the  life  of  /.  S.  his  right  heir 
cannot  take  (for  nemo  est  ho're.s  viventi^),  and  in  that  case  the 
freehold  shall  not  remain  in  the  lessor,  and  expect  the  death  of 
/.  ^S*.  during  the  term ;  for  albeit  /.  tS.  die  during  the  term,  yet 
the  remainder  is  void,  because  a  liverie  of  seisin  cannot  expect. 

(A)  ^ee  ante  Sect.  59. 

And 


217.  b.J 

(2  Bep.  55.) 


Of  Estates 


L.  3.  C.  5.  Sect.  350. 


[h]  Hill  & 

Grange, 

PI.  Com.  171. 


[c]  10  E.  3. 
Seignior  Staf- 
ford's case, 
lib.  8.fol.74.  PI. 
Com  Nichol's 
case,  487. 


Seignior  Staf- 
ford's case  ubi 
Fupra. 


,,^    And  they  say  further,  that  seeing  all  the  hooks  r917."l 
aforesaid  prove  that  such  a  condition  is  good,  and  that  L     b-     J 
the  liverie  made  to  the  lessee  is  effectual],  by  conse- 
quence the  freehold  and  inheritance  must  pass  presently  or  not 
at  all. 

And  it  is  not  rare,  say  they,  in  our  books  that  words  shall  be 
transposed  and  marshalled  so  as  the  feoffment  or  grant  may 
take  effect.  [U]  As  if  a  man  in  the  month  of  Fehruary  make  a 
lease  for  yeares  reserving  a  yearly  rent  payable  at  the  feasts  of 
Saint  Michael  the  Archangell,  and  the  Annuntiation  of  our  Lady, 
during  the  term,  the  law  (in  this  case  of  reservation)  shall  make 
transposition  of  the  feasts,  viz.  at  the  feasts  of  the  Annunciation, 
and  of  Saint  Michael  the  Archangel,  that  the  rent  may  be  paid 
yearly  during  the  term.  And  so  it  is  [c]  in  case  of  a  grant  of 
an  annuitie.  And  further  they  take  a  diversitie  in  this  case 
between  a  lease  for  life  and  a  lease  for  years.  For  in  case  of  a 
lease  for  life  with  such  a  condition  to  have  fee,  they  agree  that 
the  fee  simple  passeth  not  before  the  performance  of  the  condi- 
tion, for  that  the  livery  may  presently  work  upon  the  freehold ; 
but  otherwise  it  is  in  the  case  of  a  lease  for  years.  Also  they 
take  a  diversitie  between  inheritances  that  lie  in  grant  and  inhe- 
ritances that  lie  in  livery.  For  they  agree  that  if  a  man  grant 
an  advowson  for  years  upon  condition,  that  if  the  grantee  pay 
twenty  shillings,  &c.  within  the  term,  that  then  he  shall  have 
fee,  the  grantee  shall  not  have  fee  untill  the  condition  be  per- 
formed. Et  sic  de  similihus.  But  otherwise  it  is  where  liverie 
of  seisin  is  requisite,  and  therefore  if  the  king  make  such  a  lease 
for  years  upon  such  a  condition,  the  fee  simple  shall  not  pass 
presently,  because  in  that  case  no  liverie  is  made. 

They  also  make  severall  answers  to  the  authorities  before 
cited.  For  as  to  the  case  in  31  K  1,  they  say  that  either  the 
case  is  mis-reported,  or  else  the  law  is  against  the  judgment.  For 
the  case  is  but  this,  that  a  man  make  a  lease  of  a  manner  to  B. 
for  twenty  years,  and  that  after  the  twentie  years  B.  shall  hold 
the  manner  to  him  and  his  heirs  by  12  pound  rent,  and  (as  it 
must  be  intended)  maketh  livery  of  seisin,  in  this  case  it  is  clear 
(say  they)  that  B.  hath  a  fee  simple  maintenant,  for  there  is  no 
condition  precedent  in  the  case. 

As  for  the  case  in  12  iJ.  2,  the  case  (as  it  is  put  in  the  book) 
is,  that  John  de  Marre  made  a  charter  to  John  de  Burford  of  fee 
simple,  and  the  same  day  it  was  covenanted  between  them  that 
John  de  Burford  should  hold  the  same  tenements  for  eight 
years,  and  if  he  did  not  pay  a  hundred  marks  at  the  end  of  the 
term  that  the  land  shall  remain  to  John  de  Burford  and  his 
heirs.  In  which  case,  say  they,  there  is  direct  repugnancy;  for, 
first,  the  charter  of  the  fee  simple  was  absolute,  and  after,  the 
same  day,  it  was  covenanted  between  them,  &c.  this  covenant 
beino-  made  after  the  charter,  could  neither  alter  the  absolute 
charter,  nor  upon  a  condition  precedent  give  him  a  fee  simple 
that  had  a  fee  simple  before. 

To  all  the  other  books,  viz.  7  E.  3.  10  E.  3.  10  Jss.  44  E.  3. 
43  A&s.  and  6  R.  2.  they  say,  tliat  being  rightly  understood  they 
are  good  law;  for  in  some  of  these  books,  as  namely  in  10  E.  3, 
10  Ass.  &c.  it  appeareth  that  there  was  a  charter  made  in  surety 
of  the  terra,  which,  say  they,  must  be  intended  thus,  viz.  a  man 
maketh  a  lease  for  years,  the  lessee  enters,  and  (he  lessor  makes 
a  charter  to  the  lessee,  and  thereby  doth  grant  unto  him,  that 

if 


L.  3.  C.  5.  Sect.  350.   upon  Condition.       [217.  b.  218.  a. 

if  he  pay  unto  the  lessor  a  hundred  marks  during  the  term,  that 
then  he  shall  have  and  hold  the  lands  to  him  and  to  his  heirs. 

In  this  case,  say  they,  there  need  no  livery  of  seisin,  but  doth  pi.  Com.  in 
enure  as  an  executory  grant  by  increasing  of  the  state,  and  in  Nichol's  case, 
that  case,  without  question,  the  fee  simple  passeth  not  before 
the  condition  is  performed. 

And  therefore  Littleton  warily  putteth  his  case  of  an  estate 
made  all  at  one  time  by  one  conveyance,  and  a  livery  made 
thereupon. 

For  Littleton  himself  in  the  Section  before  saith,  that  in  that 
case  without  a  livery  nothing  passeth  of  the  freehold  and  in- 
heritance. 

And  this  diversity  (say  they)  is  proved  by  books;  and  there- 
upon they  cite  [c?]  10  E.  3.  54.  In  a  writ  of  dower  the  tenant  [cZ]  lo  E.  3.  54, 
vouched  to  warranty ;  the  vouchee  as  to  part  pleaded  that  the 
husband  was  never  seised  of  any  estate  whereof  she  might  be 
endowed;  as  to  the  residue  the  tenant  pleaded  that  he  lessed  to 
the  husband  in  gage  upon  condition  that  if  the  lessor  paid  ten 
marks  at  a  certain  day,  that  he  should  re-enter,  and  if  he  failed 
of  payment,  that  the  land  should  remain  to  the  husband  and  his 
heires,  which  must  be  intended  to  be  done  by  one  entire  act,  and 
pleaded  that  he  paid  the  money  at  the  day,  which  is  allowed  to 
be-  a  good  plea :  Ergo,  the  fee  simple  passed  by  the  livery,  other- 
wise the  plea  had  amounted  that  the  husband  was  never  seised, 
&c.  And  say  they,  that  it  cannot  be  intended  that  the  judges 
should  be  of  one  opinion  in  Trinitie  term,  and  of  another  opinion 
in  Michaelmas  term  in  the  same  year,  and  therefore  (they  hold) 
their  severall  opinions  are  in  respect  of  the  said  diversitie  of  the 
cases. 

[e]  32  ^.  3.  tit.  Garr.  30.  A  tenant  by  the  curtesie  made  a  [c]  32  E.  3. 
lease  for  years,  and  in  surety  of  the  term,  &c.  made  a  charter  tit.  Garr.  30. 
in  fee  simple,  and  made  livery  according  to  the  charter  (note  a 
speciall  mention  made  of  livery  in  this  case);  and 
['218. "I  issue  being  taken  in  an  assise,  whether  the  BS^tenant 
|_  a.  J  by  the  courtesie  demised  in  fee,  upon  the  special  mat- 
ter found,  it  was  adjudged  that  a  fee  simple  passed, 
and  that  the  heir  might  enter  for  a  forfeiture,  which,  say  they, 
in  case  of  livery  is  an  express  judgment  in  the  point  agreeing 
with  the  opinion  of  Littleton. 

[/]4:3  E.  3.  35.  In  an  action  of  wast  against  one  in  lands  [/]43  e.  3.35. 
which  he  held  for  term  of  years,  Belkna}-)  pleaded  thus  for  the 
defendant;  that  the  defendant  was  seised  in  fee,  and  infeoffed 
the  plaintif,  &c.  and  after  the  plaintif  demised  the  land  back 
again  to  the  defendant  for  years  upon  condition,  that  if  the  de- 
fendant paid  certain  money,  &c.  that  then  the  defendant  might 
retain  the  land  to  him  and  to  his  heirs,  and  if  not,  the  plaintif 
might  enter,  &c.  and  pleaded  that  the  term  endured,  and  that 
the  day  of  payment  was  not  come,  and  demanded  judgment,  if 
the  plaintif  may  maintain  an  action  of  waste,  inasmuch  as  the 
defendant  had  now  a  fee  simple,  and  shewed  forth  the  indenture 
of  lease  with  the  condition  (which  agreeth  with  Littleton's  case) 
all  being  done  at  one  time,  and  by  one  deed,  and  a  livery  in- 
tended, and  with  Littleton's  opinion  also.  It  is  true,  say  they, 
that  Cavendish  counsel  with  the  plaintif  offered  to  demur,  but 
never  proceeded.     [^]  Vide  20  Ass.  pi.  20.  ^g-j  20  Ass, 

Other  authorities  they  cite,  but  these  (as  I  take  it)  arc  the  pi.  20. 
priucipall,  and  therefore  for  avoyding  of  tcdiousncss,  having  I 

fear 


218.  a.] 


Of  Estates 


L.  3.  C.  5.  Sect.  350. 


Lib.  8.  fo.  90. 
France's  case. 
(Dyer,  45. 
Plow.  7.  a.) 


(Plo.  481.  a. 
Ant.  206.  a.  b.) 


PI.  Com. 
Browning  &, 
Boston's  case, 
133.  b. 
(2  Rep.  53.  b.) 


Vid.  Littleton, 
cap.  Villein. 


(d)  PI.  Com. 
Browning's  case, 
133.  b. 


42  E.  3.  1. 


Lib.  2.  fo.  50. 
Sir  Hugh 

Cholmley's  case. 


(6  Rep.  34.  a.  b. 
Plo.  242.  a.) 


fear  been  too  long  upon  this  point,  tlie  others  I  omit.  Only  this 
they  add,  that  Littleton  had  seen  and  considered  of  the  said 
books,  and  have  set  down  his  opinion  where  livery  of  seisin  is 
made  upon  a  conveyance  made  at  one  time,  as  hath  been  said, 
that  he  hath  fee  simple  conditionall. 

Beniyne  lector,  utere  ttio  Judicio,  nihil  enim  impedio.  Con- 
ditio henejicialis  quae  statum  consfruit  benign^  secimdum  verho- 
riim  intentionem  est  interpretanda,  odiosa  autem  qnse  statum 
dcstruit  stricte  secundum  verhorum  proprietatem  est  accipienda. 

A  lease  is  made  to  a  man  and  a  woman  for  their  lives  upon 
condition,  that  which  of  them  two  shall  first  marry,  that  one 
shall  have  fee,  they  entermarry,  neither  of  them  shall  have  fee, 
for  the  incertainty. 

Note,  if  the  condition  be  to  increase  an  estate  (that  is  to  say) 
to  have  fee  upon  payment  of  money  to  the  lessor  or  his  heirs  at 
a  certain  day,  before  the  day  the  lessor  is  attainted  of  treason  or 
felony,  and  also  before  the  day  is  executed,  now  is  the  condition 
become  impossible  by  the  act  and  offence  of  the  lessor,  and  yet 
the  lessee  shall  not  have  fee,  because  a  precedent  condition  to 
encrease  an  estate  must  be  performed,  and  if  it  become  impossi- 
ble, no  estate  shall  rise. 

^^  Because  that  the  grantor  cannot  enter,  &c."  Regularly  when 
any  man  will  take  advantage  of  a  condition,  if  he  may  enter  he 
must  enter,  and  when  he  cannot  enter  he  must  make  a  claim, 
and  the  reason  is,  for  that  a  freehold  and  inheritance  shall  not 
cease  without  entry  or  claym,  and  also  the  feoffor  or  grantor 
may  waive  the  condition  at  his  pleasure. 

As  if  a  man  grant  an  advowson  to  a  man  and  to  his  heirs  upon 
condition,  that  if  the  grantor,  &c.  pay  20  pound  on  such  a  day, 
&c.  the  state  of  the  grantee  shall  cease  or  be  utterly  void,  (1) 
the  grantor  payeth  the  money,  yet  the  state  is  not  revested  in 
the  grantor  before  a  claim,  and  that  claim  must  be  made  at  the 
church,  (d)  And  so  it  is  of  a  reversion  or  remainder  of  a  rent, 
or  common,  or  the  like,  there  must  be  a  claim  before  the  state 
be  revested  in  the  grantor  by  force  of  the  condition,  and  that 
claim  must  be  made  upon  the  land. 

A  fortiori,  in  case  of  a  feoffment  which  passeth  by  livery  of 
seisin,  there  must  be  a  re-entry  by  force  of  the  condition  before 
the  state  be  voyd. 

If  a  man  bargaineth  and  selleth  land  by  deed  indented  and 
inrolled  with  2i  proviso,  that  if  the  bargainor  pay,  &c.  that  then 
the  state  shall  cease  and  be  void,  he  payeth  the  money,  the  state 
is  not  revested  in  the  bargainor  before  a  re-entry  (2),  and  so  it  is 
if  a  bargain  and  sale  be  made  of  a  reversion,  remainder,  advow- 
son, rent,  common,  &c.     And  so  it  is  if  lands  be  devised  to  a 


(1)  Ace.  2  And.  8. 

(2)  Ace.  1  Rep.  174.  a.  as  to  the  general  principle;  but  the  particular  case 
there  was,  that  A.  covenanted  to  stand  seised  to  the  use  of  himself  for  life, 
with  several  remainders  overj  with  a  power  of  revocation. — By  an  exercise  of 
this  power,  he  revoked  the  uses;  and  it  was  held,  that  the  ancient  uses  were 
determined,  without  entry  or  claim,  because  he  himself  was  tenant  for  life  of 
the  land,  and  he  could  not  enter  upon  himself;  and  no  claim  was  necessary,  as 
an  express  revocation  was  as  strong  as  any  claim  could  be. — See  fol.  218.  b. — 
[Not«  120.] 


L.  3,  C.  5.  Sect.  323.      upon  Condition.   [218.  a.  218.  b. 

man  and  to  his  heir  upon  condition,  that  if  the  devisee  pay  not 

20  pound  at  such  a  day,  that  his  estate  shall  cease  and  be  void, 

the  money  is  not  paid,  the  estate  shall  not  be  vested  in  the  heir 

before  an  entry.     And  so  it  is  of  the  reversion  or  remainder,  an 

advowson,  rent,  common  or  the  like  (3). 

But  the  said  rule  hath  divers  exceptions.    First,  in  this  present  Yid.  Lib.  1. 

case  of  Littleton,  for  that   he  can  make  no  entry,  he  shall  not  fo-  ^'^'^•^%^f' 
,_.  ,'  i.,i  -J?  -v,      case.     zU  Ji.  4. 

be  driven  to  make  any  claim   to   the  reversion :  tor   seeing  by  ^g^  ^g^ 

construction  of  law  the  freehold  and  inheritance  passeth  main- 
tenant,  out  of  the  lessor;  by  the  like  construction,  the  freehold 
and  inheritance  by  the  default  of  the  lessee  shall  be  revested  in 
the  lessor  without  entrie  or  claim. 

2.  If  I  grant  a  rent  charge  in  fee  out  of  my  land  upon  con-  Pl.  Com.  ^ 
dition,  there  if  the  condition  be  broken,  the  rent  shall  be  extinct  ^["J^"^""^^ 
in  my  laud,  because  I  (that  am  in  possession  of  the  land)  need  2o'°e.4.  W. 
make  no   claim  upon   the   land,  and  therefore   the  law  shall 
adjudge  the  rent  void  without  any  claim. 

3.  If  a  man  make  a  feoffment  unto  me  in  fee  upon  condition  20  E.  4. 19. 
that  I  shall  pay  unto  him  20  pound  at  a  day,  &c.  before  the  20  H^  7.^4.  b. 

day  I  let  unto  him  the  land  for  years,  reserving  a  rent,  '    ^^^'_  g'^^j 

[218.1  and  B@"  after  fail  of  payment,  the  feoflfee  (A)  shall 
b."**  J  retaine  the  land  to  him  and  to  his  heirs,  and  the  rent 
is  determined  and  extinct,  for  that  the  feoffor  could 
not  enter,  nor  need  not  claim  upon  the  land,  for  that  he  himself 
was   in  possession,   and  the   condition  being  collateral  is  not 
suspended  by  the  lease,  otherwise  it  is  of  rent  reserved. 

4.  If  a  man  by  his  deed  in  consideration  of  fatherly  love,  &c.  Lib.  1.  174. 
covenant  to  stand  seised  to  the  use  of  himself  for  life,  and  after  ^fff  R^r®' 
his  decease,  to  the  use  of  his  eldest  son  in  tail,  the  remainder  to  237.  a.  265.  b. 
his  second  son  in  tail,  the  remainder  to  his  third  son  in  fee.  Ante  215.  a.) 
with  Si  proviso  of  revocation,  &c.  the  father  doth  make  a  revo- 
cation according  to  the  proviso,  the  whole  estate  is  maintenant 

revested  in  him  without  entry  or  claim  for  the  cause  aforesaid. 

"  The  grantee  hath  yet  title  hy  three  yeares."  By  this  it 
appeareth  that  albeit  the  lessee  had  pro  tempore  a  fee  simple, 
yet  after  the  fee  simple  is  divested  out  of  him,  and  vested  in 
the  lessor,  he  shall  hold  the  lands  for  three  years  by  the  express 
limitation  of  the  parties. 

If  a  man  make  a  lease  for  40  years,  the  lessee  afterwards  taketh  PI.  com.  in. 
a  lease  for  20  years  upon  condition  that  if  he  doth  such  an  act,  ^"J™':1f*°?®'^ 
that   then   the   lease  for  20  years  shall   be  void,  and  after  the  (2  Roll.  Abr. 
lessee  break  the  condition,  by  force  whereof  the  second  lease  is  494,  495.  497. 
void,  notwithstanding  the  lease  for  forty  years  is  surrendered,  for  '^^^^  f''*'"'il 
the  condition  was  annexed  to  the  lease  for  20  years,  but   the  1  Roii.Ab'r. " 
surrender  was  absolute.     So  it  is  if  a  man  make  a  lease  for  40  412.) 
years,  and  the  lessor  grant  the  reversion  to  the  lessee  upon  con- 
dition, and  after  the  condition  is  broken,  the  term  was  absolutely 
surrendered.     And  the  diversitie  is  when  the  lessor  grants  the 


(A)    The  aenae  appears  to  require  that  lord  Coke  ahould  have  used  the  icord  feoffor  hare 
instead  of  feoffee.     See  31r.  Jiitso's  Intr.p.  119. 

(3)  The  entry,  or  claim,  may  be  made  either  by  the  party  himself,  or  by 
stranger,  by  his  order.     2  Cro.  57. — [Note  121.] 


218.  b.]  Of  Estates         L.  3.  C.  5.  Sect.  350. 


14  E.  4.  6. 
45  E.  3. 


reversion  to  the  lessee  upon  condition,  and  when  the  lessee  grants 
7_E^4.  29.  or  surrenders  his  estate  to  the  lessor;  for  a  condition  annexed 

to  a  surrender  may  revest  the  particular  estate,  because  the  sur- 
render is  conditional!.  But  when  the  lessor  grants  the  reversion 
to  the  lessee  upon  condition,  there  the  condition  is  annexed  to 
the  reversion,  and  the  surrender  absolute  (1). 
8  E.  2.  Ass.  395.  A  guardian  in  chivalrie  took  a  feoffment  of  the  infant  within 
age,  that  was  in  his  ward,  and  the  infant  brought  an  assise,  and 
the  guardian  shall  be  adjudged  a  disseisor,  which  proveth  that 
the  feoffment  as  against  the  infant  was  voyd,  and  yet  by  ac- 
ceptance thereof  the  interest  of  the  guardian  was  surrendred. 
50  E.  3.  27.  -^  ^^^  maketh  a  lease  for  term  of  life  by  deed,  reserving  the 

first  seven  years  a  rose,  and  if  the  lessee  will  hold  the  land  after 
the  seven  years,  to  pay  a  rent  in  money ;  the  lessee  will  not 
holdover,  but  surrender  his  term  :  in  this  case  in  judgement  of 
law  he  had  but  a  term  for  seven  years.  And  so  it  is  if  a  man 
make  a  lease  for  life,  and  if  the  lessee  within  one  year  pay  not 
20  shillings,  that  he  shall  have  but  a  term  for  two  years,  if  he 
pay  not  the  money  the  estate  for  life  is  determined,  and  he  shall 
have  the  land  but  for  two  years. 

"  Thists  a  good  proof  then,  that  the  reversion  is  in  Mm,  &c." 
Here  is  implyed  that  no  man  can  have  an  action  of  waste,  unless 
the  reversion  be  in  him,  and  by  the  authoritie  of  our  author  the 
reason  of  a  case^  and  well  applyeth,  is  a  good  proof  in  law  (2). 

Sect. 


(1)  See  also  Dyer,  143.     2  Roll.  Abr.  495. 

(2)  No  person  is  entitled  to  an  action  of  waste  against  a  tenant  for  life,  but 
he  who  has  the  immediate  estate  of  inheritance  in  remainder  or  reversion, 
expectant  upon  the  estate  for  life.  If  between  the  estate  of  the  tenant  for 
life  who  commits  waste,  and  the  subsequent  estate  of  inheritance,  there  is 
interposed  an  estate  of  freehold,  or  to  any  person  in  esse,  then  during  the 
continuance  of  such  interposed  estate,  the  action  of  waste  is  suspended; 
and  if  the  first  tenant  for  life  dies  during  the  continuance  of  such  interposed 
estate,  the  action  is  gone  forever.  But  though,  while  there  is  an  estate  for 
life  interposed  between  the  estate  of  the  person  committing  waste,  and  that 
of  the  reversion  or  remainder-man  in  fee ;  the  remainderman  cannot  bring 
his  action  of  waste :  yet  if  the  waste  be  done  by  cutting  down  trees,  &c. 
such  remainderman  in  fee  may  seize  them ;  and  if  they  are  taken  away,  or 
made  use  of,  before  he  seizes  them,  he  may  bring  an  action  of  trover.  For, 
in  the  eye  of  the  law,  a  remainder-man  for  life  has  not  the  property  of  the  thing 
wasted ;  and  even  a  tenant  for  life  in  possession  has  not  the  absolute  property 
of  it,  but  merely  a  right  to  the  enjoyment  or  benefit  of  it,  as  long  as  it  is 
annexed  to  the  inheritance,  of  which  it  is  considered  a  part,  and  therefore 
it  belongs  to  the  owner  of  the  fee.  See  ante  53.  b.  5th  Rep.  7G.  b.  Pagett's 
case;  Udal  v.  Udal,  Alleyn,  81.  3  P.  Wms.  267.  Bewick  v.  Whitefield. 
22  Vin.  Abr.  523.  Rolt  v.  Somerville,  2  Eq.  Cas.  Abr.  759 ;  Garth  v.  Cotton, 
8  Atk.  757.— [Note  122.] 


L.  3.  C.  5.  Sect.  351-52.      upon  Condition.  [218.  b. 


Sect.  351. 

J)UT  in  such  cases  of  feoffment  upon  condition^  ivhere  the  feoff  or  may 
lawfully  enter  for  the  condition  broken,  ^c*  there  the  feoffor  hath 
not  the  freehold  before  his  entrie,  ^c.  (3), 

This  upon  that  which  hath  been  said  is  evident,  and  needeth 
no  further  explanation. 

Sect.    352. 

ALSO,  if  a  feoffment  be  made  upon  such  condition,  that  the  feoffee 
shall  give  the  land  to  the  feoffor,  and  to  the  wife  of  the  feoffor,  to 
have  and  to  hold  to  them  and  to  the  heirs  of  their  two  bodyes  engendered, 
and  for  default  of  such  issue,  the  remainder  to  the  right  heirs  of  the 
feoffor.  In  this  case  if  the  husband  dyeth,  living  the  wife,  before  any 
estate  in  tail  made  unto  them,  ^c  then  ought  the  feoffee  by  the  law  to  make 
an  estate  to  the  wife  as  near  the  condition,  and  also  as  near  to  the  entent 
of  the  condition  as  he  may  make  it  (donques  doit  le  feoffee  per  la  ley 
faire  estate  a  la  feme  cy  pres  le  condition,  et  auxy  cy  pres  I'entent  de 
le  condition  que  il  poit  faire)  (1),  that  is  to  say,  to  let  the  land  to  the 
wife  for  term  of  life  without  impeachment  of  ivaste  (sauns  impeachment 
de  wast  (2),  the  remainder  after  his  (B)  decease  to  the  heirs  of  the  body 
of  her  husband  on  her  begotten  (le  remainder  apres  son  decease  a  les 
heires  de  t  corps  sa  baron  de  luy  engendres)  (3),  and  for  default  of 

such 


*  &c.  not  in  L.  and  M.  or  Roh.  f  les  corps  de  son  baron  et  de  luy 

engendres,  in  L.  and  M.  and  Eoh. 

(B]  Here  the  sense  requires  the  word  her  imlead  o/his,  as  it  seems. 


(3)  For  till  entry  it  doth  not  appear;  the  feoffor  having  power  at  his  election 
to  void  or  continue  the  estate  of  the  feoffee,  which  he  will  do.  Nutc  to  the 
11th  edition. — [Note  123.] 

(1)  J  So  where  a  feoffment  was  made  on  condition  that  the  feoffees  re-infeoffed 
tlie  feoffor  and  his  wife  in  tail,  the  remainder  to  the  right  heirs  of  the  husband  ; 
the  husband  died,  the  wife  married  a  second  husband;  the  feoffees  enfeoffed 
the  second  husband  and  his  wife,  for  her  life  ; — the  remainder  to  the  right 
heirs  of  the  first  husband;  it  was  held  that  the  condition  was  well  performed. 
Br.  Abr.  tit.  Cond.  pi.  33.     And  sec  ibid.  70.     Plo.  291.— [Note  124.] 

(2)  §  Note,  if  land  hegiven  to  the  tcife,and  the  lieirf.  of  the  husband  of  his  body 
begotten,  the  wife  shall  have  the  estate  for  life,  suhject  to  ivaste. — Stq).  26.  h. 
therefore  such  conveyance  is  not  by  force.     Lord  Nott.  MS. — [Note  12o.] 

(3)  II  It  is  with  great  pleasure  wc  present  the  reader  with  the  following  obser- 
vations on  this  passage.  Lord  chief-justice  Wilmot,  in  his  argument  in  giving 
judgment  in  the  case  of  Frogmorton  on  demise  of  Robinson  v.  Wharrey, 
2  Blackst.  728.  remarks :  "When  an  estate  is  limited  to  a  husband  and  wife, 
"  and  the  heirs  of  their  two  bodies ;  the  word  Heirs  is  a  word  of  limitation, 

"  because 

X  I  II  These  notes  are  in  219.  a.  in  the  13th  and  lith  editions. 


218.  b.  219  a.  |  Of  Estates      L.  3.  C.  5.  Sect.  352. 

such  issue,  the  remainder  to  the  right  heirs  of  the  husband.  And  the  cause 
ivhy  the  lease  shall  he  in  this  case  to  the  ivife  alone  unthout  impeachment  of 
waste  is,  for  that  the  condition  is,  that  the  estate  shall  be  made  to  the 
husband  and  to  his  ivife  in  tail  (en  |  taile).  And  if  such  estate  had  been 
made  in  the  life  of  the  husband,  then  after  the  death  of  the  husband  she 
should  have  had  (el  ||  ust  ewe)  an  estate  in  tail,  which  estate  is  without 
impeachment  of  waste.  And  so  it  is  reason,  that  as  near  as  a  man  can 
make  the  estate  to  the  intent  of  the  condition,  ^c.  that  it  should  be  made 
(que  il  serroit  §  fait),  ^c.  albeit  she  cannot  have  (comment  que  1  el  ne 
poit  aver)  estate  in  tail  (en  4.  taile),  as  she  might  have  had  if  the  gift  in 
tail  had  been  made  to  her  husband  and  to  her  in  the  life  of  her  husband 
(sicome  el  **  puissoit  aver  si  le  done  en  le  taile  ust  estre  fuit  a  ff  sa 
baron  et  J|  a  luy  en  le  vie  \.\.  sa  baron),  ^c. 

D^Iru^EHz      "  J^^^'^  the  feoffee  shall  give,  &c."     Here  is  no  time  limit- 
Dyer,  311.  b.^  ^*^'  therefore  the  feoffee  by  the  law  hath  time 
2  H.  4.  5. '   *       S®"  during  his  life,  unless  he  be  hastened  by  the  re-  r219. 1 
44  E.  3.  9.          quest  of  the  feoffor  or  the  heirs  of  his  body,  is  Little-  L     ^-     J 
81  in  Seigl?'  ^^'^  saith  in  the  next  section. 

Cromwel's  case.  (Ant.  208.  b.  1  Roll.  Abr.  429.     1  Eoll.  Abr.  614,  615.  a.)  (2  Rep.  59.) 

(Sect.  33?.)  ''If  the  husband  dyeth,  ffcc."     But  in  this  case,  if  the  feoffee 

dyeth  before  any  feoffment  made,  then  is  the  condition  broken, 

because  he  made  not  the  estates,  &c.  within  the  time  prescribed 

„  ^  by  the  law.     But  if  the  feoffment  be  made  upon  condition  that 

33  h!  e".  26*,  27.    *^^  feoffee  before  the  feast  of  St.  Michael  the  Archangell  next 

9  Eliz.  Dyer,  262.     PI.  Com.  456.     Lib.  2.  fo.  79.     Seignior  Cromwell's  case.     (Sect.  334.) 

following 

X  le  added  in  L.  and.  M.  and  Roll.  \.  le  added  in  L.  and  M.  and  Roh. 

II  ust  ewe — ad  ewe,  in  L.  and  31.  **  el — il  in  L.  and  M.  and  Roh. 

and  Roh.  ff  sa — son  in  L.  and  M.  and  Roh. 

§  fait  not  in  L.  and  M.  or  Roh.  ^t  ^  ™^^  ^^  ^-  "'^^  ^^-  ^'"  ■^°'^- 

T[  el — il  in  L.  and  M.  and  Roh.  ].|  sa — son  in  L.  and  M.  and  Roh. 

"  because  an  estate  is  given  to  both  the  persons,  from  whose  bodies  the  heirs 
"  are  to  issue.  But  when  it  is  given  to  one  only,  and  the  heirs  of  two,  (as  to 
"  the  wife  and  the  heirs  of  her  and  A.  B.)  there  the  words  Heirs  is  a  word  of 
"  purchase;  for  no  estate  tail  can  be  made  to  one  only,  and  the  heirs  of  the 
''  body  of  that  person  and  another.  This  appears  from  Littleton,  Sect.  352, 
"  according  to  the  true  reading  collected  from  the  original  editions.  The 
"  common  editions  make  the  estate  aj  p)rcs,  therein  mentioned,  to  be,  to  the 
"  widow  and  les  heirs  de  corps  sa  baron  de  luy  engendres  ;  which  is  not  as  near 
"  as  might  be  to  the  original  estate  intended,  if  the  husband  had  lived;  viz. 
"  to  the  husband  and  wife,  and  the  heirs  of  their  two  bodies.  But  the  origi- 
"  nal  edition  by  Lettou  and  Machlinia,  in  Littleton's  life-time,  and  the  Kohan 
"  edition,  which  is  the  next  (both  which  my  brother  Blackstone  has)  read  it 
"  thus :  les  heirs  de  les  corps  de  son  haron  et  de  Ivy  engendres:  which  is  quite 
'•  consonant  to  the  original  estate;  and  this  estate,  to  the  widow  for  life,  and 
"  the  heirs  of  the  body  of  her  husband  and  herself  begotten,  Littleton,  in  the 
"  same  section,  declares  not  to  be  an  estate  tail.  The  same  is  held  in  Dyer, 
"  99. — in  Lane  and  Pannel,  1  Roll.  Rep.  438.  and  in  Gossage  and  Taylor, 
"  Style,  325.  which,  from  a  manuscript  of  lord  Hale,  in  possession  of  my 
"  brother  Bathurst,  appears  to  have  been  first  determined  in  Hil.  1651;  which 
"  accounts  for  some  expressions  of  lord  chief-justice  Rolle,  in  Style's  case, 
"  which  was  in  T.  Pasch.  1652."— [Xote  126.] 


L.  3.  C.  5.  Sect.  352.    upon  Condition.   [219.  a.  219.  !>. 

following  give  the  land  to  the  feoffor  and  to  bis  wife  in  tail,  ut 

supra,  and  before  the  day  the  feoffee  dieth,  the  state  of  the  heir 

of  the  feoffee  shall  be  absolute,  because  a  certain  time  is  limited 

by  the  mutual  agreement  of  the  parties,  within  which  time  the 

condition  becometh  impossible  by  the  act  of  Grod,  as  hath  been  (1  Roll.  Abr. 

said  before,  and  therefore  it  is  necessary  when  a  day  is  limited,  200'    f  °^' 

to  add   to  the  condition,  that  the  feoffee  or  his  heirs  do  per-  (2  Rep!  79.  a. 

form  the  condition ;  but  when  no  time  is  limited,  then  the  feoffee  6  Rep.  30.  b). 

at  his  perill  must  perform  the  condition  during  his  life  (although 

there  be  no  request  made)  or  else  the  feoffor  or  his  heirs  may 

re-enter. 

"Made  unto  them,  &c."  Here  the  (&c.)  implyeth  according 
to  the  condition  with  the  remainder  over. 

"  To  the  feoffor  and  to  the  wife,  &c."  Here  it  appeareth  that  27  E.  3. 
albeit  the  feme  be  a  stranger,  yet  the  feoffee  is  not  bound  to  Dower,  135. 

make  it  within  convenient  time,  because  the  feoffor  S®>g°'<^r  Crom- 

[SIQ."]  who  is  privy  to  the  condition  is  to  take  O:^joyntly  TuVa.*"^^^' "  ' 
b.     J   with  her.     And  so  it  is  if  the  condition  be  to  enfeoff  (6  Rep.  30.  b.) 
the  feoffor  and  an  estranger,  the  feoffee  hath  time 
during  his  life,  unless  he  be  hastened  by  request.     Otkerwise  it  (i  Roll.  Abr. 
is  (as  hath  been  said)  where  the  condition  is  to  enfeoff  a  stranger  '^^^••) 
or  strangers  only. 

If  a  man  make  a  feoffment  in  fee,  upon  condition  that  the  (i  roH.  Abr 
feoffee  shall  make  a  gift  in  tail  to  the  feoffor,  the  remainder  to  428.) 
a  stranger  in  fee,  there  the  feoffee  hath  time  during  his  life,  as 
is  aforesaid,  because  the  feoffor  who  is  partie,  and  privy  to  the 
condition,  is  to  take  the  first  estate.     But  if  the  condition  were  Seignior  Crom- 
to  make  a  gift  in  tail  to  a  stranger,  the  remainder  to  the  feoffor  "^^'^'^  <'*^«'  "*>^ 
in  fee,  there  the  feoffee  ought  to  do  it  in  convenient  time,  for  (2^Re'p.  79. 
that  the  stranger  is  not  privy  to  the  condition,  and  he  ought  to  Ant.  208.  b.) 
have  the  profits  presently,  as  before  hath  been  said, 

"  To  make  an  estate  to  the  icife  as  neer  the  condition,  and  also 
as  near  to  the  extent  of  the  condition  as  he  m,ai/  make  it  (de 
faire  estate  al  feme  cy  pres  le  condition,  et  auxy  cy  pres  I'entent 
del  condition  que  il  poit  faire),  &c." 

A.  infeoffs  B.  upon  condition  that  B.  shall  make  an  estate  in  (Ant.  21.  b.) 
frankmarriage  to  C.  with  one  such  as  is  the  daughter  of  the 
feoffor;  in  this  case  he  cannot  make  an  estate  in  frankmarriage, 
because  the  estate  must  move  from  the  feoffee,  and  the  daughter 
is  not  of  his  blood,  but  yet  he  must  make  an  estate  to  them  for 
their  lives,  for  this  is  as  near  the  condition  as  he  can.  And  so 
it  is  if  the  condition  be,  to  make  to  A.  (which  is  a  meer  layman) 
an  estate  in  frankalmoigne,  yet  must  he  make  an  estate  to  him 
for  life,  for  the  reasons  here  yielded  by  Littleton. 

A  diversitie  is  to  be  understood  between  conditions  that  are  to 
create  an  estate,  and  conditions  that  are  to  destroy  an  estate  :  for 
here  it  appeareth,  that  a  condition  that  is  to  create  an  estate,  is 
to  be  performed  by  construction  of  law,  as  near  the  condition  as 
may  be,  and  according  to  the  intent  and  meaning  of  the  condition,  (i  Roll.  Abr. 
albeit  the  letter  and  words  of  the  condition  cannot  be  performed :  ^26.  Plow.  7.  n. 
but  otherwise  it  is  of  a  condition  that  destroyeth  an  estate,  for  ^^^^'  ^^'  *-^ 
that  is  to  be  taken  strictly,  unless  it  be  in  certain  speciall  cases : 
and  of  this  somewhat  hath  been  said  before  in  this  chapter. 

As  if  a  man  mortgage  hi?  Ir.nd  to  W.  upon  condition,  that  if  the  30  TI.  8.  tit. 
mortgagor  and  I.  S.  pay  twt  iity  -^hillings  at  such  a  day  to  the  mort-  Condit.  Br.  190. 
gagee,  then  that  he  shall  re-oir.  s-,  the  mortgagor  dieth  before  the  J^J5  ^:  gj*'"' 

day, 


219.  b.  220.  a.]        Of  Estates       L.  3.  C.  5.  Sect.  852. 

day,  I.  S.  paies  the  money  to  the  mortgagee,  this  is  a  good  per- 
formance of  the  condition,  and  yet  the  letter  of  the  condition  is 
not  performed.  But  if  the  mortgagor  had  been  alive  at  the  day, 
and  he  would  not  pay  the  money,  but  refused  to  pay  the  same, 
and  /.  S.  alone  had  tendred  the  money,  the  mortgagee  might 
have  refused  it.  But  if  a  man  make  a  lease  to  two  for  years, 
with  a  pj-oiu'so,  if  the  lessees  dye  during  the  term,  the  lessor 
shall  re-enter,  one  lessee  alien  his  part  and  dye,  the  other  lessee 
(A)  cannot  re-enter,  but  the  assignee  shall  enjoy  the  term  so 
long  as  the  survivor  liveth,  and  the  reason  is,  because  the  lease 
by  the  jjroviso  is  not  to  cease  till  both  be  dead.  But  in  the 
former  case,  albeit  the  mortgagor  be  dead,  yet  the  act  of  God 
shall  not  disable  I.  S.  to  pay  the  money,  for  thereby  the  mort- 
gagee receives  no  prejudice.  And  so  it  is  in  that  case,  if  1.  S. 
had  died  before  the  day,  the  mortgagor  might  have  paid  it. 
Lib.  2.  fo.  79,  And  here  is  to  be  observed  a  diversity,  when  the  feoffee 

80,  81.  Seignior  dyeth,  for  then  (as  hath  been  said)  the  condition  is  broken,  and 
2  hTI'^  *=''^°-  when  the  feoffor  dieth,  for  then  the  estate  is  to  be  made  as  near 
the  intent  of  the  condition  as  may  be. 

"  To  the  wife  for  term  of  life  without  impeachment  of  waste." 
Here  it  appeareth  that  this  estate  for  life  ought  to  be  without 
impeachment  of  waste,  and  yet  if  the  wife  doth  accept  of  any 
estate  for  life  without  this  clause,  without  impeachment  of  wast, 
it  is  good,  because  the  state  for  life  is  the  substance  of  the  grant, 
and  the  privilege  to  be  without  impeachment  of  wast  is  collate- 
Seignior  Crom-    ^^11,  and  only  for  the  benefit  of  the  wife,  and  the  omission  of  it 
wel's  case,  ubi     only  for  the  benefit  of  the  heir  (1). 
supra.  Also  if  the  wife  take  husband  before  request  made, 

303 '304.  442.  ^^^  then  they  make  request,  and  the  state  Jg^^'is  r330.~j 
Ant.  207.  a.  made  to  the  husband  and  wife,  during  the  life  of  the  L  ^*  J 
Cro.  El.  45.)  wife,  this  is  a  good  performance  of  the  condition, 
(1  Roll.  Abr.  albeit  the  estate  be  made  to  the  husband  and  wife,  where  Little- 
ton saith  it  is  to  be  made  to  the  wife,  but  it  is  all  one  in  sub- 
stance, seeing  that  the  limitation  is  during  the  life  of  the  wife. 

(Cro.  Car.  242.)  "  Without  impeachment  of  waste  {sanns  impeachment  de  wast)," 
(Cro.  Jac.  216.)  bisque  impetitione  vasti,  (that  is)  without  any  challenge  or  im- 
ports!^ irb^  11. ''"  peachment  of  waste,  and  by  force  hereof  the  lessee  may  cut  down 
fo.83'.lib.9.fo.9.  the  trees  and  convert  them  to  his  own  use.  Otherwise  it  is  if 
lib.  2.  23.  i]^Q  -^vords  were  saims  impeachment  per  ascun  action  de  wast,  for 

then  the  discharge  extends  but  to  the  action,  and  not  to  the  trees 
themselves,  and  in  that  case  the  lessor  shall  have  them  (1)*- 

And 

(A)  Jt  seems  that  the  text  should  be  read  as  if  the  word  lessor  had  been  here  inserted 
instead  of  the  words  "  other  lessee." 


(1)  Mr.  serj.  Hawkins  observes  here,  that  the  omission  of  the  privilege  of 
being  without  impeachment  of  waste  shall  not  give  the  heir  of  the  feoffor,  for 
whose  benefit  it  was  omitted,  a  re-entry,  which  would  defeat  the  estate  of  the 
wife.     P.  307.  2  Rep.  82.  a.— [Note  127.] 

(1)  *  The  privilege  given  by  the  words  without  impeachment  of  waste,  is  an- 
nexed to  the  privity  of  estate; — so  that  if  the  person  to  whom  that  privilege  is 
given,  changes  his  estate,  he  loses  the  privilege.  11  Rep.  83.  b.  Latch.  270. 
— It  has  been  held  that  the  intent  of  this  clause  is  only  to  enable  the  tenant  to 
cut  down  timber  and  open  new  mines,  and  that  it  does  not  extend  to  allow  de- 
structive 


L.  3.  C.  5.  Sect.  353.       upon  Condition.  [220.  a. 

And  it  is  to  be  observed  that  after  the  decease  of  the  husband 
the  state  is  not  to  be  made  to  the  wife  and  the  heires  of  her  body  (4  Rep.  63.  a.) 
by  her  late  husband  ingendred,  and  so  to  have  an  estate  of  in- 
heritance as  she  should  have  had  by  survivor,  if  the  estate  had 
been  made  according  to  the  condition,  but  only  an  estate  for  life 
without  impeachment  of  waste,  &c.  for  that  by  the  authoritie  of 
Littleton  is  not  so  near  the  intent  of  the  condition,  as  the  case 
that  Littleton  putteth.  But  I  will  search  no  further  into  this 
case,  but  leave  it  to  the  learned  and  judicious  reader. 

"  And  after  her  decease  to  the  heires  of  the  hodv  of  her  husband  (Ant.  20.  b. 
,       7        „      „  26.  b.  27.  a. 

on  her  begotten. 

'~  Note  here,  admit  that  there  were  two  issues  in  tail,  the  re- 
mainder shall  presently  vest  only  in  the  eldest,  and  yet  if  he 
dieth  without  issue,  it  shall  per /orm a  donivest  in  the  youngest, 
as  hath  been  said  in  the  chapter  of  Estate  tail  (2);  and  so  it  is 
tacite  proved  here  for  otherwise  the  condition  (if  there  were  two 
issues)  could  not  be  performed. 


Sect.  353. 


ALSO  in  this  case  if  the  husband  and  wife  have  issue,  and  die  before 
the  gift  in  tail  made  to  them,  ^c.  then  the  feoffee  ought  to  make  an 
estate  to  the  issue,  and  to  the  heirs  of  the  body  of  his  father  and  his  mo- 
ther begotten,  and  for  default  of  such  issue,  c^c.  the  remainder  to  the 
right  heires  of  the  hisband,  ^c.  And  the  same  law  is  in  other  like  cases : 
and  if  such  a  feoffee  ivill  not  take  (B)  such  estate  (et  si  tiel  feoffee  ne 
voet  faire  tiel  estate,  <^c.  ivhen  he  is  reasonably  required  by  them  which 
ought  to  have  the  state  by  force  of  the  condition,  §-c.  then  may  the  feoffor 
or  his  heirs  enter*. 

"  '^^  HEN  he  is  reasonably  required  by  them  tcliich  ought  to 
ha  ve  the  estate  by  force  of  the  condition."  Note  here  it  ap- 
peareth,  that  the  feoffee  hath  time  during  his  life  to  make  the  ^^^'^P*  '^^'  ^■ 
estate,  unless  he  be  reasonably  required  by  them  that  are  to  take 
the  estate.  This  is  to  be  intended  of  parties  or  privies,  and  not 
of  raeer  strangers,  for  there  (as  hath  been  said)  the  state  must  (Ant.  222.  b. 
be  made  in  convenient  time.  ^  ' 

And 

*  <£r.  added  in  L.  and  M.  and  Roh. 

(B)  ThU  word  "take"  is  not  agreeable  to  the  sense  of  the  passage  ;  neither  does  it  express 
the  meaning  of  the  French  word  faire  itsed  by  Littleton,  ichich  signifies  make  tn  English. 
See  Mr.  Ritso's  Inter,  p.  112. 

structive  or  malicious  waste ;  such  as  cutting  down  timber  which  serves  for  the 
shelter  or  ornament  of  the  estate.  See  Vane  v.  Lord  Bernard,  2  Vern.  73S. 
Packington  v.  Packington,  7  Bac.  Abr.  289.  8vo.  cd.  Rolt  v.  Lord  Sommer- 
ville,  2  Abr.  Eq.  759.  Aston  v.  Aston,  1  Ves.  2G4.  Piers  v.  Piers,  1  Ves.  52L 
—[Note  128.] 

(2)  See  1  Bep.  95.  3  Bep.  61.  11  B^'p.  SO,  and  the  note  in  Mr.  Douglas's 
B"ports,  page  (488,  1st  cd.)  505.  a.  4th  ed. 

Vol.  XL— 14 


220.  a.  220.  b.        Of  Estates  L.  3.  C.  5.  Sect.  :^54. 

And  concerning  the  request  it  is  to  be  known,  that  when  tue 
request  is  made,  the  party  or  privy  must  request  the  feoffee  at  a 
time  certain  to  be  upon  the  land,  and  to  make  the  state  accord- 
ing to  the  condition,  for  seeing  no  time  certain  is  prescribed  for 
(8  Rep.  89.  b.)  the  making  of  the  state,  and  it  is  incertain  when  the  request  shall 
be  made  such  request  and  notice  must  be  made  as  hath  been 
said  before  in  this  chapter.  And  of  this  section  with  the  (d'c.) 
there  needeth  not^  upon  that  which  hath  been  said,  any  farther 
explication. 


«^  Sect.  354.  [^  b^*l 

ALSO  if  a  feoffment  be  made  upon  condition,  that  if  (C)  tJie  feoffee 
shall  re-enfeoff  many  men  (que  le  feoffee  *  re-infeoffera  plusors 
homes)  to  have  and  to  hold  to  them  and  to  their  heires  for  ever,  and  all 
they  which  ought  to  have  estate  dye  before  any  estate  made  to  them,  then 
ought  the  feoffee  to  make  estate  to  the  heire  of  him  which  survives  of 
them  to  have  and  to  hold  to  him  and  to  the  heirs  of  him  which  sur- 
viveth'{{l). 

(2  Rep.  70.)         "  rp EAT  ike  feoffor  shall  re-enfeoff  many  men."     By  the  re- 

feoffment  it  is  implied  to  be  made  to  the  feoffors,  for  a 

feoffment  over  to  strangers  cannot  be  said  a  re-feoffment,  and  if 

the  feoffment  should  be  made  over  to  strangers  only,  then,  as 

hath  been  often  said,  it  must  be  made  in  convenient  time. 

*'  To  the  heir  of  him  which  survives,  to  have  and,  to  hold  to  him 
and  to  the  heirs  of  him  wJiich  surviveth."  Hereupon  questions 
have  been  made,  wherefore  the  habendum  is  not  to  the  heirs  of 
the  heir,  and  for  what  reason  it  is  by  Littleton  limited  to  the 
heirs  of  the  survivor.  And  the  cause  is,  for  that  if  it  were  made 
to  the  heirs  of  the  heir,  then  some  persons  by  possibility  should 
be  inheritable  to  the  land,  which  should  not  have  inherited  if  the 

estate 

*  re-infeoffera — infeoffera,    L.    and        f  &c.    added   in   L.    and   M.    and 
M.  and  Roh.  Koh. 

(C)  The  sense  na  well  as  tJie  original  French  seems  to  require  that  this  passage  should  be  read  as 
if  the  word  "if"  had  been  omitted.     See  Mr.  Ritso's  Inter,  p.  112. 


(1)  See  whether  there  is  a  difference  between  an  obligation  and  feoffment  with 
condition  to  re-enfeoff.  Obligation  on  condition  to  give  to  the  baron  and  feme  and 
the  heires  of  the  body  of  the  feme  before  a  certain  day  ;  and  before  the  day  the 
feme  dies.  The  court  was  divided  ichether  he  ought  to  make  it  cy  pres,  in  8  Jac. 
B.  R.  Rot.  303.  Roger  and  Scudamore,  T.  ^l.—P.  4  E.  6.  Bendl.  n.  56. 
Obligation  on  condition  to  enfeoff'  B.  and  C.  and  their  heirs  before  such  a  day, 
I  end  before  the  day  B.  dies,  the  obligation  is  discharged.  Sir  Ant.  Broion's  case. 
Hut  this  case  was  denied  by  the  whole  court.  T.  40  EL  C.  B.  C.  C.  n.  16. 
Obligation  tvitli  condition  that  the  obligor  or  his  heirs  should  enfeoff  the  obligee 
and  his  heirs  before  a  certain  day; — before  the  day  the  obligee  dies:  it  was 
ruled  that  he  thould  enfeoff"  the  heir.  T.  40  El.  C.  B.  Home  v.  May,  C.  C.  n. 
16.— Lord  Hale's  MSS.— [Note  129.] 


L.  3.  C.  5.  Sect.  355.     upon  Condition.     [220.  b.  221. 

estate  had  been  made  to  the  survivor  and  his  heirs,  and  conse- 
quently the  condition  broken. 

For  example,  if  the  survivor  took  to  wife  Alice  Fairejield,  in  (Ant.  12.  a.) 
this  case  if  the  limitation  were  to  the  son  and  his  heirs,  then  if 
the  son  should  dye  without  heirs  of  his  father,  the  blood  of  the 
Fairejields  (being  the  blood  of  his  mother)  should  inherit.  But 
if  the  limitation  be  to  the  right  heirs  of  the  father,  then  should 
not  the  blood  of  the  Fairejidds  by  any  possibility  inherit,  for 
then  it  is  as  much  as  if  the  state  had  been  made  to  the  survivor 
and  his  heirs  :  and  therefore  these  words  (a?u/  to  the  heirs  of  him 
which  surviveth),  which  many  have  thought  superfluous,  are 
verie  materiall.  Note  well  this  kind  of  fee  simple,  for  it  is  Vide  Sect.  4. 
worthy  the  observation  :  but  suflacient  hath  been  said  to  open 
the  meaning  of  Littleton,  and  therefore  I  will  dive  no  deeper 
into  this  point,  but  leave  it  to  the  further  consideration  of  the 


a. 


learned  reader  (2). 


Sect.  355. 


ALSO  if  a  feoffment  he  made  upon  condition  to  enfeoff  another,  or  to 
make  a  gift  in  tail  to  another  (si  feoffment  soit  fait  sur  condition 
(I'enfeoffer  un  auter,  ou  |  de  doner  en  ||  taile  a  un  auter),  ^c.  if  the 
feoffee  before  the  performance  of  the  condition  enfeoff  a  stranger,  or 
make  a  lease  for  life,  then  may  the  feoffor  and  his  heirs  enter,  ^c.  be- 
cause he  hath  disabled  (1)  himself  to  perform  the  condition,  inasmuch 
as  he  hath  made  an  estate  to  another,  ^c. 

T  ITTLETON  having  spoken  of  defaults  of  performance,  or 

express  breaches  of  conditions,  speaketh  now  in  what  cases 

the  feoffee  in  judgment  of  law  doth  disfible  himselfe  to  perform 

the  condition ;  and  of  disabilities  some  be  by  act  of  the  party, 

and  some  by  act  in  law. 

'^  Or  to  make  a  gift  Jin  tail  to  another,  &c."     Here  is  implied 
an  estate  for  life  or  for  years,  &c. 

tQQl.l       JJ^°  '^Enfeoff  a  stranger,  or  make  a  lease  for  life."  13  h.  7.  23.  b. 
a.     J  This  is  a  disabilitie  by  the  act  of  the  partie,  for  herein  32  E.  3.  Barre, 
the  feoffee  hath  disabled  himself  to  make  the  feoff-  If'^^^  ^\!7^^' 
ment  or  other  estate  according  to  the  condition.     And  to  speak 
once  for  all,  the  feoffee  is  disabled  when  he  cannot  convey  the 
land  over  according  to  the  condition  in  the  same  plight,  qualitie,  ,,  -^      ^^^^ 
and  freedom  as  the  land  was  conveyed  to  him,  for  so  the  law  i'roH.  Abr. 
requireth  the  same,  as  shall  manifestly  appear  hereafter.     And  447.) 
here  where  our  author  speaketh  of  a  feoffment,  he  includeth  an 
estate  tail  as  well  as  the  fee  simple. 

Sect. 

J  de  not  in  L.  and  M.  or  Roh.  \\  le  added  in  L.  and  M.  and  Roh. 


(2)  See  the  note  2,  on  page  12.  b. 

(1)  Upon  the  doctrine  of  this  and  the  three  following  Sections,  see  Vin. 
Abr.  vol.  5.  p.  221.  225. 


221.  a.J  Of  Estates      L.  3.  C.  5.  Sect.  356,  357. 


(tS^pi?-)  Sect.  356. 

(5  Rep.  9o.) 

TN  the  same  manner  it  is,  if  the  feoffee,  before  the  condition  performed, 
letteth  the  same  land  to  a  stranger  for  term  of  years;  in  this  case  the 
feoffor  and  his  heirs  may  enter,  ^c.  because  the  feoffee  hath  disabled  him 
to  make  an  estate  of  the  tenements  according  to  that  which  was  in  the 
tenements,  tvhen  the  state  thereof  ivas  made  unto  him.  For  if  he  ivill 
make  an  estate  *  of  the  tenements  according  to  the  condition,  ^c.  then 
may  the  lessee  for  years  enter  and  oust  him  to  whom  the  estate  is  made, 
^-c.  and  occupy  this  during  his  term  t- 

"  JF  the  feoffee,  before  the  condition  performed,  letteth  the  same 
land  to  a  stranger  for  term  of  years,  &c."     Here  the  &c. 
implyeth  a  lease  to  take  effect  in  fxituro  as  well  as  in  proisenti, 
also  a  lease  for  one  year  or  half  a  year,  &c. 

The  reason  of  this  is  evidently  set  down  before.  And  again, 
of  disabilities  some  be  by  act  in  praisenti,  whereof  Littleton 
hath  put  two  examples,  and  some  in  futuro,  whereof  now  he 
will  speak  in  the  next  Section. 


Sect.  357. 

A  ND  many  have  said,  that  if  such  feoffment  be  made  to  a  single  man 
upon  the  same  condition,  and  before  he  hath  'performed  the  same 
condition  he  taketh  wife,  then  the  feoffor  and  his  heirs  maintenant  may 
enter,  because,  if  he  hath  made  an  estate  according  to  the  condition,  and 
after  dieth,  then  the  ivife  shall  be  endoived  (Et  plusors  on  dit,  que  si  tiel 
feoifment  soit  fait  a  un  home  sole  sur  meisme  condition,  et  devant  que 
il  ad  performe  mesme  la  condition  il  prent  feme,  §  donques  le  feoffor 
et  ses  heires  maintenant  poient  entrer,  pur  ceo  que  s'il  fesoit  estate 
accordant  a  la  condition,  et  puis  morust,  donques  \.  la  feme  serra 
endowe),  and  may  recover  her  doiuer  by  a  ivrit  of  dower,  ^c.  and  so  by 
the  taking  of  a  wife,  the  tenements  be  put  in  another  plight  than  they 
were  at  the  time  of  the  feoffment  upon  condition,  for  that  then  no  such 
wife  was  dowable  ('pur  ceo  que  adonques  nul  tiel  %  feme  fuit  dowable), 
nor  should  be  endowed  by  the  laiv,  ^c. 

"T?IRST,  here  is  an  example  of  a  disability  both  by  act  in  law 
J-  and  in  futuro,  for  by  marriage  the  wife  is  entitled  by  law  to 
dower,  after  the  death  of  her  husband. 

Secondly, 

*  of  the  tenements  not  in  L.  and  M.  §  donques — que  in  L.  and  M.  and 

or  Roh.  Roh. 

t   dr.   added   in    L.   and    M.    and  f  la — sa  in  L.  and  31.  and  Roh. 

lioh.  X  feme  not  in  L.  and  31.  or  Roh. 


222. 


a. 


L.  3.  C.  5.  Sect.  357.  upon  Condition.    [221.  b. 

Secondly,  it  [a]  appeaveth  that  albeit  the  wife  by  [a]  13  n.  7. 

[3 31.1  the  marriage  is  but  intitled  to  have  0:^  dower,  and  23.  b.^  34  E.  3. 
b.     J   the  estate  which  she  is  to  have  in/aturo,  viz.  after  the  jj_    97  e.  3. 
decease  of  her  husband,  yet  it  is  a  present  cause  of  tit.  Dower,  135. 
entrie.     As  a  lease  for  years  to  begin  at  a  day  to  come  is  a  ??f/^i,Pi%^' 
present  disabilitie  and  cause  of  re-entrie,  for  that  the  land  is  jj,^_  2.  m.  59.  b. 
not  in  that  freedom  and  plight  as  it  was  conveyed  to  the  feoffee,  (5  Rep.  20.  b. 
and  after  the  state  made  over  according  to  the  condition  the  21-  a.) 
land  shall  be  charged  therewith.  tou'Tcase^iib!!^ 

"In  another  plight."     Plight  is  an  old  English  word,  and  ^o^- ^a,  60. 
here  signifieth  not  only  the  estate  but  the  habit  and  qualitie  of 
the  land,  and  extendeth  to  rent  charges,  and  to  a  possibility  of 
dower.      Vide  Sect.  289.  where  plight  is  taken  for  an  estate  or  (i  Roll.  Abr. 
interest  of  and  in  the  land  itself,  and  extendeth  not  to  a  rent  ^47.) 
charge  out  of  the  land. 

"  To  a  single  man."  For  if  the  feoflFee  were  married  at  the 
time  of  the  feoffment,  then  the  dower  can  be  no  disabilitie,  be- 
cause the  land  shall  remain  in  such  plight  as  it  was  at  the  time 
of  the  feoffment  made  unto  him. 

"  Then  the  feoffor  and  his  heir's  maintenant  may  enter."  Here 
it  appeareth,  that  seeing  that  for  this  title  or  possibilitie  the 
feoffor  may  presently  enter,  that  albeit  the  wife  happen  to  dye 
before  the  husband,  so  as  this  title  or  possibilitie  took  no  effect, 
yet  the  feoffor  may  re-enter,  for  the  feoffee  being  disabled  at 
any  time  though  the  same  continue  not,  yet  the  feoffor  may  re- 
enter, for  in  that  case  he  that  is  once  disabled  is  ever  disabled. 
And  herein  a  diversitie  is  to  be  observed  between  a  disabilitie 
for  a  time  on  the  part  of  a  feoffee,  and  a  disability  for  a  time 
on  the  part  of  the  feoffor.  For  if  a  man  maketh  a  feoffment  in  (5  Rep.  21.  a.) 
fee,  upon  condition  that  the  feoffee  before  such  a  day  shall  re-in- 
feoff  the  feoffor,  the  feoffee  taketh  wife,  and  the  wife  dyeth  before 
the  day,  yet  may  the  feoffor  re-enter. 

So  it  is  if  the  feoffee  before  the  day  entreth  into  21  E.  4.  55. 

[333."]   religion,  and  is  professed,  and  before  B@°"  the  day  is 
a.     J   deraigned,  yet  the  feoffor  may  re-enter. 

So  it  is  if  the  feoffee  befcre  the  day  make  a  feoff- 
ment in  fee,  and  before  the  day  take  back  an  estate  to  him  and 
his  heirs,  yet  the  feoffor  may  re-enter. 

Albeit  in  these  cases  a  certain  day  is  limited,  yet  the  feoffee 
being  once  disabled  is  ever  disabled.  And  so  it  is  when  no  time 
is  limited  by  the  parties,  but  the  time  is  appointed  by  the  law. 

But  if  a  man  make  a  feoffment  in  fee  upon  condition,  that  if 
the  feoffor  or  his  heirs  pay  a  certain  sum  of  money  before  such 
a  day,  the  feoffor  commit  treason,  is  attainted  and  executed,  now  (2  Rep.  79.  a.) 
is  there  a  disabilitie  on  the  part  of  the  feoffor,  for  he  hath  no  heir ; 
but  if  the  heir  be  restored  before  the  day  he  may  perform  the 
condition,  as  it  was  resolved  *7Vm.  IS  Eliz.  in  Communi  Banco  «  Trin.  18  Eliz. 
in  sir  Thomas  Wiat's  case,  which  I  heard  and  observed.     Other-  ^^  Communi 
wise  it  is  if  such  a  disabilitie  had  grown  on  the  part  of  the  ThomasViat's 
feoffee;  and  the  reason  of  the  diversitie  is,  for  that,  as  Littleton  case, 
saith,  maintenant  by  the  disability  of  the  feoffee,  the  condition 
is  broken,  and  the  feoffor  may  enter,  but  so  it  is  not  by  the  f^^°-  ^^^-  ^' 
disability  of  the  feoffor,  or  his  heirs;  for  if  they  perform  the  litRlh.^il) 
condition  within  the  time,  it  is  sufficient,  for  that  they  may  at    "  ' 
any  time  perform  the  condition  before  the  day.     And  so  it  is 

if 


222.  a.J 


Of  Estates 


L.  3.  C.  5.  Sect.  358. 


if  the  feoffor  enter  into  religion,  and  before  the  day  is  deraigned, 
he  may  perform  the  condition  for  the  cause  aforesaid.  Et  sic 
de  similibus.  The  ((fee.)  in  this  Section  are  sufficiently  ex- 
plained. 


Sect.  358. 

TNtJie  same  manner  it  is,  if  the  feoffee  charge  the  land  hy  his  deed 
with  a  rent  charge  before  the  performance  of  the  condition,  or  he  hound 
in  a  statute  staple,  or  statute  merchant,  in  these  cases  the  feoffor  and  his 
heirs  may  enter,  ^c.  causa  qua  supra.  For  ivhosoever  commeth  to  the 
lands  hy  the  feoffment  of  the  f coffee,  they  ought  to  he  lyahle,  and  put  in 
execution  hy  force  of  the  statute  merchant,  or  of  the  statute  staj^Ie  (Car 
quecunque  que  venust  a  les  tenements  per  le  feoffment  de  le  feoffee, 
*  eux  covient  estre  liables,  et  estre  mis  en  execution  per  force  de  I'esta- 
tute  merchant  ou  de  statute  del  staple.)  f  Quaere.  But  ivhen  the  feoffor 
or  his  heirs,  for  the  causes  aforesaid,  shall  have  entred,  as  it  seems  they 
ought,  ^-c.  then  all  such  things  which  hefore  such  entry  might  trouhle 
or  incumber  the  land  so  given  upon  condition,  ^c.  as  to  the  same  land, 
are  altogether  defeated. 

"  JIJAY  enter,  &c."  And  here  it  is  to  be  understood,  that 
the  grant  of  the  rent  charge  is  a  present  disability  of 
the  feoffee,  and  therefore  albeit  the  grantee  doth  bring  a  writ 
of  annuitie,  and  discharge  the  land  of  it,  ah  initio,  yet  the 
cause  of  entrie  being  once  given  by  the  act  of  the  feoffee  the 
feoffor  may  re-enter.  And  so  it  is  if  the  grant  of  the  rent 
charge  were  made  for  life,  and  the  grantee  died  before  any  day 
of  payment,  yet  the  feoffor  may  re-enter. 

The  like  law  is  of  any  judgment  given  against  the  feoffee 
wherein  debt  or  damages  are  recovered. 

"  Or  he  hoxind  in  a  statute  staple,  &c."  If  the  feoffee  be  dis- 
seised,  and  after  bind  himself  in  a  statute  staple,  or  merchant, 
or  in  a  recognizance,  or  take  wife,  this  is  no  disabilitie  in  him, 
for  that  during  the  disseisin  the  land  is  not  charged  therewith, 
neither  is  the  land  in  the  hands  of  the  disseisor  liable  thereunto. 
And  in  that  case  if  the  wife  die,  or  the  conusee  release  the 
statute  or  recognizance,  and  after  the  disseisee  doth  enter, 
there  is  no  disabilitie  at  all,  because  the  land  was  never  charged 
therewith,  and  therefore  in  that  case  the  feoffee  may  enter  and 
perform  the  condition  in  the  same  light  and  freedom  as  it  was 
conveyed  unto  him. 

And  it  is  to  be  observed,  that  Littleton  putteth  these  cases  as 
examples,  for  there  are  some  other  disabilities  implyed,  that  are 
■  not  here  expressed. 

The  lord  Clifford  did  hold  his  barony  and  sherifwick  of 
Westmerland  of  the  king  by  grand  serjanty  in  capite,  and  the 
king  gave  him  licence  that  he  might  infeoff  thereof  divers 
chaplains  in  fee,  so  that  they  should  give  the  same  to  the  lord 

Clifford 


13  H.  7.  23.  b. 

44  E.  3.  9.  b. 

20  E.  3.  73. 

20  H.  6.  34. 

JuliusWynning- 

ton's  case,  ubi 

supra. 

(1  Roll.  Abr. 

447.) 

(5  Rep.  20.  b). 


Lib.  2.  fol.  59, 
60.  Julius  Wyn- 
nington's  case. 
(2  Rep.  79.  a. 
10  Rep.  49.  b.) 


18  Ass.  PI.  ult. 

19  E.  3.  39. 
Lib.  2.  fol.  80.  b 
Seig.  Crom- 
■wel's  case. 

(4  Rep.  119.) 


*  eux — donques  les  tenements,  in 
L.  and  M.  and  Roh, 


j-  Quaere. — &c.  in 
Roh. 


L.  and  M.  and 


L.  3.  C.  5.  Sect.  359.  upon  Condition.  [222.  b. 

t 2 33.1  Clifford  and  the  heires  00=" male  of  his  body,  the  re- 
b.  J  mainder  over,  &c.  the  lord  Clifford  according  to  the  (Ant.  Sect.  354. 
licence  infeoifed  the  chaplains,  and  before  they  made  1  Roll.  Abr. 
the  reconveyance  the  lord  Clifford  dyed,  and  it  was  adjudged 
that  the  heir  might  enter  for  the  condition  broken.  For  in  this 
case  the  feoffees  were  bound  by  law  to  have  made  the  gift  in  tail 
to  the  lord  Clifford  himself,  albeit  he  never  made  any  request, 
for  otherwise  they  pursued  not  the  licence,  and  if  they  should 
make  the  state  to  the  issue  of  the  lord  Clifford,  then  might  the 
king  seise  the  barony,  &c.  for  default  of  a  licence,  and  that  in 
default  of  the  feoffees.  And  then  the  same  should  not  be  in 
the  same  plight  and  freedom  as  it  was  at  the  time  of  the  feoff- 
ment made  upon  condition,  which  is  worthy  of  observation. 

If  a  man  grant  an  advowson  upon  condition  that  the  grantee  (2  Rep.  79. 
shall  regrant  the  same  to  the  grantor  in  tail;  in  this  case,  if  the  1  Leo.  167.) 
church  become  void  before  the  regrant,  or  before  any  request 
made  by  the  grantor,  he  may  take  advantage  of  the  condition, 
because  the  advowson  is  not  in  the  same  plight  as  it  was  at  the 
time  of  the  grant  upon  condition.     And  so  it  was  resolved, 
{*)PascJi.  14  Eliz.  in  Covimuni  Banco,  between  Andrewes  and  (»)Pasch. 
Blunt,  which  I  heard  and   observed,  and  which  my  lord  Dier  '^^.^f^^'^-  ^'^^^ 
hath  omitted  out  of  his  report  of  that  case,  and  therefore  the 
grantee  in  that  case  at  his  perill  must  regrant  it  before  the 
church  become  voide,  or  else  he  is  disabled,  otherwise  he  hath 
time  during  his  life  if  he  be  not  hastened  by  request. 

If  the  feoffee  suffer  a  recovery  by  default  upon  a  faigned  title,  44  E.  3.  9.  ' 
before  execution  sued  the  feoffor  may  re-enter  for  this  disability. 
Et  sic  de  similibus. 


Sect.  359. 

A  LSO,  if  a  man  make  a  deed  of  feoffment  to  another,  and  in  the  deed 
there  is  no  condition,  ^c.  and  when  the  feoffor  will  make  liverie  of 
seisin  unto  hiyn  hy  force  of  the  same  deed,  he  makes  livery  of  seisin 
unto  him  upon  certain  condition* ;  in  this  case  nothing  of  the  tenements 
passeth  by  the  deed,  for  that  the  condition  is  not  comprised  within  the 
deed,  and  the  feoffment  is  in  like  force  as  if  no  such  deed  had  been 
made. 

"  A  ND  in  the  deed  there  is  no  condition,  &c."  either  in  deed 
"^  or  in  law. 

"  And  the  feoffment  is  in  like  force  as  if  no  such  deed  had  (4  Rep.  25.  a.) 
been  made."    And  the  reason  hereof  is,  for  that  the  estate  pass-  18  ^.  3. 19-36. 
eth  by  the  livery  of  seisin  (1).    And  in  this  case  the  feoffor  upon  g^u/j'g^]'     ' 
the  deliverie  of  seisin   must  express  the  state   to   him  and  his  27  H.  6. 
heirs,  or  to  the  heirs  of  his  body,  &c. 

If  an  agreement  be  made  between  two,  that  the  one  shall  en-  34  Asa.  PI.  1. 
feoff  the  other  upon  condition  in  surety  of  the  paiment  of  cer- 
tain money,  and  after  the  livery  is  made  to  him  and  his  heirs 

generally, 

*  dr.  added  in  L.  and  M.  and  Rob. 
(1)  Vid.  ant.  48. 


222.  b.  223.  a.]  Of  Estates      L.  3.  C.  5.  Sect.  360. 

generally,  the  state  is  holden  by  some  to  be  upon  condition,  in- 
asmuch as  the  intent  of  the  parties  was  not  changed  at  any  time, 
but  continued  at  the  time  of  the  livery  (2). 
13  E.  3.  tit.  If  a  man  make  a  charter  of  feoffment  in  fee,  and  the  feoffor 

Estoppel!,  177.     deliver  seisin  for  life,  the  feoffee  shall  hold  it  but  for  life;  but  if 
is/'"  ^"  ^^^^'       *^®  livery  be  expresly  for  life,  and  also  according  to  the  deed, 
the  whole  fee  simple  shall  pass,  because  it  hath  a  reference  to 
the  deed. 


Sect.  360. 

jj^LSO,  if  a  feoffment  be  made  upon  tins  condition,  that  the  feoffee 
shall  not  alien  the  land  to  any,  this  condition  is  void,  because  ivhen 
a  man  is  infeoffed  of  lands  or  tenements  (pur  ceo  que  quant  home  est 
enfeoffe  '  de  terres  ou  tenements),  he  hath  poiver  to  alien  them  to  any 
person  by  the  lato.  For  if  such  a  condition  should  be  good,  then  the 
condition  should  oust  him  of  all  the  poiver  ivhich  the  law  gives  him, 
which  should  be  against  reason,  and  therefore  such  a  condition  is  void. 


"jj^LSO,  if  a  feoffment  he  made,  &cr   And  JS®==the   r223."| 
like  law  is  of  a  devise  in  fee  upon  condition  that  L     a.      J 


(Ant.  206. 
1  Kep.  85.) 

8  H. '7.  lO.'b?'      *^^  devisee  shall  not  alien  (1),  the  condition  is  void, 
33  Ass.  11.  24.     and  so  it  is  of  a  grant,  release,  confirmation,  or  any  other  con- 
^Q^iV^*^*^  ^^'^^'  veyance  whereby  a  fee  simple  doth  pass.     For  it  is  absurd  and 
1.3' H.  7.  23.         repugnant  to  reason  that  he,  that  hath  no   posssibility  to  have 
(5  Rep.  56.  a.)     the  land  revert  to  him,  should  restrain  his  feoffee  in  fee  simple 
Argumentum       of  all  his  povvcr  to  alien.     And  so  it  is  if  a  man  be  possessed 
^Hde  Sect.°722.    °^  ^  \^z&G,  for  years,  or  of  a  horse,  or  of  any  other  chattell  reall 
or  personall,  and  give  or  sell   his  whole  interest  or   propertie 
therein  upon  condition  that  the  donee  or  vendee  shall  not  alien 
the  same,  the  same  is  void,  because  his  whole  interest  and  pro- 
pertie is  out  of  him,  so  as  he  hath  no  possibilitie  of  a  reverter, 
and  it  is  against  trade  and  traffique,  and  bargaining  and  con- 
tracting between  man  and  man :  and  it  is  within  the  reason  of 

our 
*  de — en,  L.  and  M. 


(2)  As  to  deeds,  see  Burglacy  v.  Ellington,  1  Brownlow's  Rep.  191.  The 
court  held,  that,  when  a  deed  is  perfect  and  delivered  as  his  deed,  then  no 
verbal  agreement  made  after  may  be  pleaded  in  destruction  or  alteration  there- 
of; but,  when  the  agreement  is  parcel  of  the  original  contract,  and  may  well 
stand  with  the  deed,  and  is  not  in  terms  repugnant  to  it,  then  such  verbal 
•agreement  may  be  pleaded.  As,  if  a  man  for  money  mortgage  land  to  B.  by 
deed  being  of  greater  yearly  value  than  the  interest  money,  and  before  the 
sealing  of  the  deed  it  was  agreed  by  word,  that  the  mortgagor  should  have  and 
receive  the  profits,  not  the  mortgagee,  this  is  good  and  usual  in  such  cases, 
and  B.  may  plead  the  verbal  agreement  to  avoid  the  danger  of  usury.  But,  if 
it  had  been  expressed  within  the  deed,  that  the  mortgagee  should  have  the 
profits,  and  the  deed  was  delivered  accordingly,  then  no  agreement,  covenant, 
or  assignment  of  the  profits  could  keep  it,  but  that  it  was  an  usurious  contract, 
and  consequently  the  deed  and  mortgage  void. — [Note  130.] 

(1)  A  devise  in  fee,  on  condition  not  to  alien  hut  to  I.  S.  ichether  void?  See 
Muschamp's  case,  Bridg.  132. — Lord  Nott.  MSS. — [Note  131.] 


L.  3.  C.  5.  Sect.  361.   upon  Condition.      [223.  a.  223.  b. 

our  author  that  it  should  ouster  him  of  all  power  given  to  him. 
Iniquum  est  ingenuis  hominihus  non  esse  libcram  rerum  suarum 
alienatlonem ;  and  rerum  suarum  quilihet  est  moderator,  & 
arbiter.  And  again,  regulariter  non  valet  pactum  de  re  med 
non  alienandd.  But  these  are  to  be  understood  of  conditions 
annexed  to  the  grant  or  sale  itself  in  respect  of  the  repugnancy, 
and  not  to  any  other  collatei'all  thing,  as  hereafter  shall  appear. 
Where  our  author  puttcth  his  case  of  a  feoffment  of  land,  that  (10  Rep.  39. 
is  put  but  for  an  example :  for  if  a  man  be  seised  of  a  seigniory,  Hob.  170.) 
or  a  rent,  or  an  advowson,  or  common,  or  any  other  inheritance 
that  lyeth  in  grant,  and  by  his  deed  granteth  the  same  to  a  man 
and  to  his  heirs  upon  condition  that  he  shall  not  alien,  this  con- 
dition is  void.  But  some  have  said  that  a  man  may  grant  a 
rent  charge  newly  created  out  of  lands  to  a  man  and  to  his  heirs 
upon  condition  that  he  shall  not  alien  that,  that  is  good,  because 
the  rent  is  of  his  own  creation;  but  this  is  against  the  reason 
and  opinion  of  our  author,  and  against  the  height  and  puritie  of 
a  fee  simple. 

A  man  before  the   statute  of  quia  emptores  terrarum  might  14  H.  4. 
have  made  a  feoffemeat  in  fee,  and  added  furthex',  that  if  he  or  13  H.  7.  23. 
his  heirs  did  alien  without  licence,  that  he  should  pay  a  fine, 
then  this  had  been  good.     And  so  it  is  said,  that  then  the  lord  21  H.  7.  8. 
might  have  restrained  the  alienation  of  his  tenant  by  condition,  ^^y-}-^^- 
because  the  lord  had  a  possibilitie  of  reverter;  and  so  it  is  in  the     ^^°    ^  ^^^^' 
king's  case  at  this  day,  because  he  may  reserve  a  tenure  to  him- 
self. 

If  A.  be  seised  of  Black  Acre  in  fee,  and  B.  infeoffeth  him  of 
White  Acre  upon  condition  that  A.  shall  not  alien  Black  Acre, 
the  condition  is  good,  for  the  condition  is  annexed  to  other  land, 
and  ousteth  not  the  feoffee  of  his  power  to  alien  the  land  whereof 
the  feoffment  is  made,  and  so  no  repugnancy  to  the  state  passed 
by  the  feoffment;  and  so  it  is  of  gifts,  or  sale  of  chattels  real  or 
personal. 

Sect.  361. 

J)  TIT  if  the  condition  he  such,  that  the  feoffee  shall  not  alien  to  such 
a  one,  naming  his  name,  or  to  any  of  his  heirs,  or  of  the  issues  of 
such  a  one  (Mes  si  le  condition  soit  tiel,  que  le  feoffee  ne  alienera  a  un 
tie],  nosmant  son  nosme,  ou  a  ascun  de  *  ses  heires,  ou  de  issues  d'un 
tiel),  ^c.  or  the  like,  which  conditions  do  not  take  aivay  all  power  of 
alienation  from  the  feoffee,  cj-c.  then  such  condition  is  good. 

IF  a  feoffment  in  fee  be  made  upon  condition  that  the  feoffee  pi.  Com.  77.  a. 
shall  not  enfeoffc  /.  S.  or  any  of  his  heirs  or  issues,  &c.  this  8  H.  7. 10.  b. 
is  good,  for  he  doth  not  restrain  the  feoffee  of  all  his 

[3 2 3. "I  power:  the  reason  here  yielded  by  our  B®" author  is  (Dyor,  45.  a. 
b.     J   worthy  of  observation.    And  in  this  case  if  the  feoffee  ll  Rep.  74.  a.) 
enfeoffe  I.  A\  of  cntent  and  purpose  that  he  shall  in- 
feoffe  /.  S.  some  hold  that  this  is  a  breach  of  the  condition,  for 
quando  aliquid  prohibetur  fieri,  ex  directo  prohibetiir  &  per  ob- 
liquum. 

If  a  feoffment  bee  made  upon  condition  that  the  feoffee  shall  10  11.  7. 11. 
not  alien  in  mortmain,  this  is  good,  because  such  alienation  is  Doct.  and 

prohibited  stud.  124.^^ 

*^ses  not  in  L.  and  M. 


223.  b.]  Of  Estates    L.  3.  C.  5.  Sect.  362. 

prohibited  by  law,  and  regularly  whatsoever  is  prohibited  by  the 

law,  may  be  prohibited  by  condition,  be  it  malum  inoMhitwm, 

or  malum  in  se.     In  ancient  deeds  of  feoffment  in  fee  there  was 

Braeton,  lib.  1.    most  commonly  a  clause,  qudd  licitum  sit  donafori  rem  datam 

fol.  13.  a.  dare  vel  vendere  cui  voluerit,  exccpds  viris  religiosis  &  Judseis. 


Sect.  362. 

A  LSO,  if  lands  he  given  in  tail  upon  condition,  that  the  tenant  in  tail 
nor  his  heirs  shall  not  alien  in  fee,  nor  in  tail,  nor  for  term  of  an- 
other's life,  hut  only  for  their  oivn  lives  (si  tenements  soient  donees  en 
le  taile  sur  tie!  condition,  que  le  tenant  en  le  taile  ne  ses  heires  f  ne 
alieneront  en  fee,  %  ne  en  le  taile,  ne  pur  terme  d'auter  vie,  forsque  pur 
lour  vies  demesne),  ^c.  such  condition  is  good.  And  the  reason  is,  for 
that  when  he  malceth  such  alienation  and  discontinuance  of  the  entail, 
he  doth  contrary  to  the  intent  of  the  donor,  for  zvhich  the  statute  of  W. 
2.  II  cap.  1.  was  made,  hy  which  statute  the  estates  in  tail  are  ordained{V). 

NOTE 

f  &c.  added  in  L.  and  M.  \\  cap.  1.  added  in  L.  and  M. 

i  ne — ou  in  L.  and  31. 


(1)  A  power  of  suffering  a  common  recovery,  and  of  levying  a  fine  within 
the  statutes  of  4  Hen.  7,  and  32  Hen.  8,  is  so  inseparably  inherent  to  the  estate 
of  a  tenant  in  tail,  that  any  condition  or  proviso  restraining  or  prohibiting  it, 
is  held  to  be  repugnant  to  the  nature  of  the  estate,  and  therefore  void.  But 
it  does  not  vitiate  the  grant  of  the  estate  tail  to  which  it  is  annexed;  because 
(to  use  an  expression  of  lord  Hobart)  a  condition  annexed  to  an  estate  given 
is  a  divided  clause  from  the  grant,  and  therefore  cannot  frustrate  the  grant 
preceding  it,  neither  in  any  thing  expressed,  nor  in  any  thing  implied,  which 
is,  of  its  nature,  incident  to  and  inseparable  from  the  thing  granted.  Hob. 
170.  But  this  doctrine  does  not  extend  to  a  feoffment,  a  fine  at  common  law, 
or  any  other  alienation  which  works  a  discontinuance,  and  is  therefore  con- 
sidered in  the  law  as  tortious.  A  proviso  restrictive  of  an  alienation  of  this 
nature  may  be  annexed  to  an  estate  in  tail,  either  as  a  condition  to  determine 
the  estate,  and  give  the  donor  and  his  heirs  a  right  of  re-entry,  or  by  way  of 
limitation,  to  make  the  estate  of  the  tenant  in  tail  cease,  and  the  lands  remain 
over  to  a  third  person!  But  in  these  cases  the  estate  in  tail  must  be  made  to 
cease  absolutely;  for  a  proviso  to  make  it  void  only  during  the  life  of  the  tenant 
in  tail  is  void.  "  See  Litt.  Sect.  720,  721,  722,  728.  Scholastica's  case,  Plo. 
403.  Corbett's  case,  1  Eep.  83.  b.  Jermyn  v.  Arscot,  cited  in  1  Rep.  85. 
Mildmay's  case,  6  Bep.  40.  Mary  Portington's  case,  10  Rep.  37.  b.  The 
courts  however  have  allowed  both  conditions  and  covenants,  restraining  or 
prohibiting  lessees  for  life  or  years  assigning  their  estates  without  the  consent 
of  the  lessors.  Blencowe  v.  Bugby,  3  Wilson,  234.  In  Hunter  v.  Galliers, 
Term  Reports,  vol.  2.  133.  a  proviso  in  a  lease  for  21  years  that  the  landlord 
should  re-enter  on  the  tenant's  committing  any  act  of  bankruptcy  whereon  a 
commission  should  issue,  was  held  to  be  good.  In  Davidson  v.  Foley,  Brown's 
Reports  in  Cha.  2  vol.  203.  the  reader  will  find  a  curious  instance  of  a  trust 
under  which  two  persons  are  become  virtually  entitled  to  a  very  considerable 
annuity,  at  the  same  time  that  the  trust  is  so  framed  as  to  exclude  their  cre- 
ditors from  having  any  charge  or  lien  upon  the  annuity,  either  at  law  or  equity. 


L.  3.  C.  5.  Sect.  362.    upon  Condition.    [223.  b.  224.  a. 

NOTE  here,  the  double  negative  in  legall  construction  shall  33  ^gg^  n.  24. 
not  hinder  the  negative,  viz.  s\ih  condithnc  quod  ipse  nee  Tise-  \\h.  6.  40,  41. 
redes  sui  non  alienarent.     And  therefore  the  grammaticall  con-  f/^'^j'^g^gg '^''^^ 
struction  is  not  always  in  judgment  of  law  to  be  followed.  ^3  jj'  >j\  23" 

21H.  7.  11.     Vid.  Sect.  220.  ace.     (Cro.  Car.  555.      Hob.  191.     Cro.  Jac.  307. 
Ant.  146.  b.     10  Rep.  130.     4  Rep.  14.) 

''But  only  for  iheir  own  lives,  &c."    And  yet  if  a  man  mabe 
a  gift  in  taile,  upon  condition  that  he  shall  not  make  a  lease  for  ^^^  ^ 

his  own  life,  albeit  the  state  be  lawfull,  yet  the  condition  is  good,  contra.) 
because  the  reversion  is  in  the  donor.    As  if  a  man  make  a  lease  21  II.  6.  .33. 
for  life  or  years  upon  condition,  that  they  shall  not  grant  over  1^  H.  7.  23,  24. 
their  estate  or  let  the  land  to  others,  this   is  good,  and  yet  the  31  n]  §! 
grant  or  lease  shall  be  lawfull.    (*)  If  a  man  make  a  gift  in  tail  Dyer,  45. 
upon  condition  that  he  shall  not  make  a  lease  for  three  lives  or  jL^^jP;  ^0*3^3  g 
21  years  according  to  the  statute  of  32  //.  8,  the  condition  is  fo.  48/49''. 
good,  for  the  statute  doth  give  him  power  to  make  such   leases,  (lO  Rep.  38,  39. 
which  may  be  restrained  by  condition,  and  by  his  own  agreement ;  l  K-oH-  Abr.418.) 
for  this  power  is  not  incident  to  the  estate,  but  given  to  him  col- 
laterally by  the  act,  according  to  that  rule  of  law,  quilihet  potest 
renunciare  juri pro  se  introducto. 

"  Wlien  he  malceth  such  alienation  and  discontinuance  of  the 
entail."    And  therefore  if  a  gift  in  tail  be  made  upon  condition,  Vid.  lib.  6.  40. 
that  the  donee,  &c.  shall  not  alien,  this  condition  js  good  to  some  JJ^^jJ^^^^yg^^sg^ 
intents,  and  void  to  some ;  for,  as  to  all  those  alienations  which  ^^  p^^p  g4_ 
amount  to  any  discontinuance  of  the  state  tail  (as  Littleton  here  1  Roll.  Abr. 
speaketh ;)  or  is  against  the  statute  of  Westminstei'  2,  the  condi-  418.) 
tion  is  good  without  question.  But  as  to  a  common  recoverie  the 

condition  is  voyd,  because  this  is  no  discontinuance, 
r224.'l  but  a  bar,  and  this  common  00=  recovery  is  not  re-  (i  p^oll.  Abr. 
|_     a.     J   strained  by  the  said  statute  of  If.  2.     And  therefore  412.  418. 

such  a  condition  is  repugnant  to  the  estate  tail ;  for  it  1^  ^^P-  35.  b.) 
is  to  be  observed,  that  to  this  estate  tail  there  be  divers  incidents. 
First,  to  be  dispunished  of  waste.  Secondly,  that  the  wife  of  the 
donee  in  tail  shall  be  endowed.     Thirdly,  that  the  husband  of  a  22  E.  3.  9. 
feme  donee  after  issue  shall  be  tenant  by  the  curtesie.  Fourthly,  ^  El.  343. 
that  tenant  in  tail  may  suffer  a  common  recoverie  :  and  therefore     ^°'^* 
if  a  man  make  a  gift  in  tail,  upon  condition  to  restrain  him  of 
any  of  these  incidents,  the  condition  is  repugnant  and  void  in  law. 
And  it  is  to  be  observed,  (*)  that  a  collateral  warranty  (l)_or  a  ^.;;.)  ^3  jj_  ^^ 

lineal  24.  b. 

The  illusory  nature  of  estates  and  trusts  of  this  description  raises  a  powerful 
objection  to  them  on  the  ground  of  policy ;  nor  are  they,  perhaps,  quite  recou- 
cileable  to  some  of  the  fundamental  principles  of  our  law.  Serious  consequences, 
it  is  presumed,  would  ensue  their  coming  into  general,  or  even  frequent,  use. — 
[Note  132.] 

(1)  But  this  is  altered  by  the  4  and  5  (B)  Ann.  c.  IG,  whereby  all  collateral 
warranties  by  ancestors,  who  have  no  estate  of  inheritance  in  possession  in  the 
lands  warranted,  are  made  void  against  their  heirs.  The  restraints  which  at 
different  times  have  been  laid  on  the  free  alienation  of  property,  and  the 
methods  used  to  set  them  aside,  form  one  of  the  most  interesting  parts  of  the 
history  of  every  nation  in  which  the  feudal  institutions  have  prevailed.  So  far 
as  the  history  of  England  is  concerned  in  them,  they  have  been  discussed  with 
great  accuracy  by  Sir  William  Blackstone,  vol.  2.  chap.  7.  and  Sir  John  Dal- 
rymple,  in  the  History  of  the  Feudal  Law,  chap.  3,  and  4.     The  introduction 

of 

(B)  This  act  is  styled  4  Artn.  c.  16,  in  Huff  head's  edition  of  the  Statutes  at  large. 


224.  a.]  Of  Estates  L.  3.  C.  5.  Sect.  362. 

lineal  with  assets  in  respect  of  the  rccompence,  is  not  restrained 
by  the  statute  of  Donis  conditionalibus,  no  more  is  the  common 
recovery  in  respect  of  the  intended  recompence.  And  Litteton, 
to  the  intent  to  exclude  the  common  recovery,  saith,  such  alien- 
ation and  discontinuance,  joyniug  them  together. 

If  a  man  before  the  statute  of  Donis  conditionalihus  had  made 
a  gift  to  a  man  and  to  the  heirs  of  his  body,  upon  condition,  that 
after  issue  he  should  not  have  power  to  sell,  this  condition  should 
have  been  repugnant  and  void  (2).  Pari  ratione,  after  the  sta- 
tute a  man  makes  a  gift  in  tail,  the  law  tacite  gives  him  power 
to  suffer  a  common  recovery  ;  therefore  to  add  a  condition,  that 
he  shall  have  no  power  to  suffer  a  common  recoverie,  is  repug- 
nant and  voyd. 

If  a  man  make  a  feoffment  to  a  baron  and  feme  in  fee,  upon 

condition,  that  they  shall  not  alien,  to  some  intent,  this  is  good, 

10  H.  7. 11.         and  to  some  intent  it  is  void  :   for  to  restrain  an  alienation  by 

13  H.  7.  23.         feoffment,  or  alienation  by  deed,  it  is  good,  because  such  an  aliena- 

;„^a-    A  *i  tion  is  tortious  and  voidable  :  but  to  restrain  their  alienation  by 

in  bir  Anthony      p.  i-ii  ••ipii  -iii 

Miidemaye's       hue  IS  repugnant  and  void,  because  it  is  lawiul  and  unavoidable, 
case,  ubi  supra.        It  is  said,  that  if  a  man  infeoffe  an  infant  in  fee,  upon  condi- 
1 R  llAb^'  '>'>!  ^  *^°^  *^^*  ^^  shall  not  alien,  this  is  good  to  restrain  alienations 
during  his  minoritie,  but  not  after  his  full  age. 

It  is  likewise  said,  that  a  man  by  licence  may  give  land  to  a 
Stude'^t  124       bishop  and  his  successors,  or  to  an  abbot  and  his  successors,  and 
add  a  condition  to  it,  that  they  shall  not  without  the  consent  of 
their  chapter  or  covent,  alien,  because  it  was  intended  a  mort- 
main, 

of  recoveries,  and  the  circumstances  which  led  the  way  to  them,  are  accurately 
stated  and  explained  by  Mr.  Cruise,  in  his  most  excellent  Essay  on  the  Law  of 
Hecoveries.  The  restraints  on  the  alienation  of  property  are  much  greater  in 
Scotland  than  they  are  in  England.  There,  if  a  tailzie  is  guarded  loitJi  irritant 
and  resolutive  clauses,  the  estate  intailed  cannot  be  carried  off  by  the  debt  or 
deed  of  any  of  the  heirs  succeeding  to  it,  in  prejudice  of  the  substitutes.  This 
degree  of  tailzie  differs  from  that  of  a  taihie  with  prohibitory  clauses.  The  pro- 
prietor of  an  estate  of  this  nature  cannot  convey  it  gratuitously,  but  he  may 
dispose  of  it  for  onerous  causes,  and  it  may  be  attached  by  his  creditors ;  yet 
the  substitutes,  as  creditors  by  virtue  of  the  prohibitory  clause,  may  by  a  pro- 
cess, called  in  the  law  of  Scotland  an  Inhibition,  secure  themselves  against 
future  debts  or  contracts.  A  third  degree  of  tailzie  used  in  Scotland  is  called 
a  simple  Distination.  This  amounts  to  no  more  than  a  designation  who  is  to 
succeed  to  the  estate,  in  case  the  temporary  proprietors  of  it  make  no  disposi- 
tion of  it :  for  it  is  defeasible,  and  attached  by  creditors.  See  Ersk.  Inst.  238, 
360.— [Note  133.] 

(2)Britton,  in  his  chapter  on  Conditional  Purchases,  observes,  that  "if  any 
"  purchase  to  him  and  his  wife,  and  to  the  heirs  of  them  lawfully  begotten, 
*' the  donees  have  presently  but  an  estate  of  freehold  for  the  term  of  their 
"  lives,  and  the  fee  accrueth  to  their  issue,  if  they  had  not  issue  before ;  and  if 
"  they  had  no  issue,  then  the  fee  remains  in  the  person  of  the  donor  until  they 
"  have  issue,  and  the  purchase  returns  to  the  donor,  if  the  purchaser  has  no 
"  offspring,  or  if  they  have  issue  and  that  issue  fails."  But  lord  Coke  in  his 
2d  Inst.  333.  observes,  that  Britton  takes  the  condition  to  be  precedent,  but 
that  the  donees  had  at  the  common  law,  a  fee  simple  conditional  immediately 
by  the  gift.  As  a  proof  of  this,  he  mentions,  that  if  a  gift  was  made  to  a  man 
and  the  heirs  of  his  body,  and  before  issue,  he  had  before  the  stat.  de  donis 
made  a  feoffment  in  fee,  the  donor  could  not  enter  for  the  forfeiture,  but  that 
the  feoffment  would  have  barred  the  issue  had  afterwards. — [Note  13-1.] 


L.  3.  C.  5.  Sect.  363.    upon  Condition.       [224.  a.  224.  b. 

main,  that  is,  that  it  should  for  ever  continue  in  that  see  or 
house,  for  that  they  had  it  en  auter  droits  for  religious  and  good 


uses. 


"  The  statute  of   W.  2.  mj).  1."     Hereby  it  appeareth,  that  lo  ll.  7.  11. 
whatsoever  is  prohibited  by  the  intent  of  any  act  of  parliament,  Doct.  &  Stud. 
may  be  prohibited  by  condition,  as  hath  been  said.  ^^^-  ^^  ^-  ^-  ^•'- 


Sect.  363. 

p'OR  it  is  proved  hy  the  ivords  comjyrised  in  the  same  statute,  that 
the  will  of  the  donor  in  such  cases  shall  be  observed,  and  when  the 
tenant  in  tail  onaketh  such  discontinuance  (Car  il  est  prove  per  les 
parols  comprises  en  mesme  I'estatute,  *  que  la  volunt  del  donor  en  tiels 
cases  serroit  observe,  et  quant  le  tenant  en  le  taile  fait  f  tiel  discon- 
tinuance), he  doth  contrary  to  that,  ^c.  And  also  in  estates  in  tail  of 
any  tenemeyits,  when  the  reversion  of  the  fee  simple,  %  or  the  remainder 
of  the  fee  simple  is  in  other  persons,  when  such  discontinuance  is  made, 
then  the  fee  simple  ||  in  the  remainder  is  discontinued.  And  because  (Et 
pur  §  ceo  que)  tenant  in  tail  shall  do  no  such  thing  against  the  profit  \ 
of  his  issues,  and  good  right,  such  condition  is  good,  as  is  aforesaid,  |'^c, 

"  JJ/'IIEN'  the  reversion  or  remainder  in  fee  is  in  other  per-  (Post.  298.  333. 

sons."     Put  the  case  that  a  man  make  a  gift  in  tail  to  A.  338.) 
the  remainder  to  him  and  to  his  heires,  upon  condition  that  he  407^472'*474 
shall  not  alien ;  as  to  the  state  tail  the  condition  is  good,  for  Cro'.  Eliz.  360.) 
such  alienation  is  prohibited,  as  hath  been  said,  by  the  said  sta-  H  H.  7.  6. 
tute.     But  as  to  the  fee  simple,  some  say  it  is  repugnant  and  ^  ^^-  'l;  ^'  ^'^■ 
voyd,  for  the  reason  that  Littleton  hath  yielded;  and  therefore  3  phil.  &  Ma. 
some  are  of  opinion,  that  this  is  a  good  condition,  and  shall  127.  b. 
defeat  the  alienation  for  the  estate  tail  only,  and  leave  the  fee 
simple  in  the  alienee,  for  that  the  condition  did  in  law  extend 
only  to  the  state  taile,  and  not  to  the  remainder. 

t324:."l        "  Against  the  ^^°  profit  of  Ms  issues."     Here  b}' it 
b.     J  appeareth,  that  to  restrain  tenant  in  tail  from  aliena- 
tion against  the  profit  of  his  issues,  is  good,  for  that 
agreeth  with  the  will  of  the  donor,  and  the  intent  of  the  statute  *.  *  46  E.  3.  4. 
But  a  gift  in  taile  may  be  made  upon  condition,  that  tenant  (^  ^^o^l-  ■'^^'■• 
in  tail,  &c.  may  alien  for  the  profit  of  his  issues,  and  that  hath  ^^^'^ 
been  holden  to  be  good,  and  not  restrained  by  the  said  statute, 
and  seemeth  to  agree  with  the  reason  of  Littleton,  because  in 
that  case,  Voluntas  donatoris  ohservetur,  &c.  and  it  must  be  for 
the  profit  of  the  issues. 

Sect. 

*  que  fuit  al  entent  de  le  fesancede         ||  in  the  reversion  or  the  fee  simple, 

mesme  I'estatute,  added  in  L.  and  M.  added  in  L.  and  M.  and  Roh. 
and  Roll.  §  ceo — ouster  in  L.   and  31.   and 

f  tiel — un,  in  L.  and  M.  and  Roh.  Roh. 

X  or  the  remainder  of  the  fee  simple,         ^  of  his  issues,  not  in  L.  and  M.  or 

not  in  L.  and  M.  or  Rob.  Roh. 

\.  dr.  Bot  in  L.  and  M.  or  Roh. 


224.  b.  225.  a.]  Of  Estates      L.  3.  C.  5.  Sect.  364. 


Sect.  364. 


A  LSO  a  man  may  give  lands  in  tail  upon  such  condition,  that  if  the 
tenant  in  tail  or  his  heirs  alien  in  fee  or  in  tail,  or  for  term  of  an- 
other man  8  life,  ^c.  and  also  that  if  all  the  issue  comming  of  the  tenant 
in  tail  he  dead  ivithout  issue,  that  then  it  shall  he  lawfullfor  the  donor 
and  for  his  heirs  to  enter,  ^c.  And  hy  this  way  the  right  of  the  tail 
(le  droit  1|  cle  le  taile)  may  be  saved  after  discontinuance  (apres^  dis- 
continuance), to  the  issue  in  tail,  if  there  he  any  (si  ascun  |  y  soit) ;  so 
as  by  way  of  entry  of  the  donor  or  of  his  heirs,  the  tail  shall  not  be  de- 
feated by  such  condition:  -j-  Quaere  hoc.  And  yet  if  the  tenant  in  tail 
in  this  case,  or  his  heirs,  make  any  discontinuance,  he  in  the  reversion 
or  his  heirs,  after  that  the  tail  is  determined  for  default  of  issue,  §-c. 
may  enter  into  the  land  by  force  of  the  same  condition,  and  shall  not  be 
compelled  (et  ne  serront  my  §  cohert)  to  sue  a  writ  of  formedon  in  the 
reverter. 

21  H.  7. 11.         "  A  LIEN,  <Src.  and  also  if  all  the  issue  be  dead,  &c."     Note, 

(1  Rep.  16.  84.)      -^  Littleton  purposely  made  parcell  of  the  condition  in  the 

copulative,  that  the  tenant  in  tail  should  alien,  &c.     For  if  a 

gift  in  tail  he  made  to  a  man  and  to  the  heirs  of  his  hody,  and 

if  he  die  without  heirs  of  his  body,  that  then  the  donor  and  his 

(Dyer,  343.  b.)  heirs  shall  re-enter,  this  is  a  voyd  condition;  for  when  the  issues 
fail,  the  estate  determineth  by  the  espresso  limitation,  and  con- 
sequently the  adding  of  the  condition  to  defeat  that  which  is 
determined  by  the  limitation  of  the  estate,  is  void(l),  and  in 
that  case  the  wife  of  the  donee  shall  be  endowed,  &c.  And 
therefore  Littleton,  to  make  the  condition  good,  added  an  aliena- 
tion, which  amounted  to  a  wrong,  and  he  restrained  not  the 
alienation  only,  (for  then  presently  upon  the  aliena- 
tion the  donor,  &c.  might  re-enter,  and  defeat  the  r2Q5."| 
estate  tail)  fi^^-but  added,  and  die  without  issue,  to  L  a.  J 
the  end  that  the  right  of  the  estate  in  tail  might  be 
preserved,  and  not  defeated  by  the  condition,  but  might  be  re- 
covered again  by  the  issue  in  tail  in  Vi  formedon. 

(Mo.  39.)  And  Littleton  expressly  saith,  that  the   donor  and  his  heirs 

after  the  discontinuance,  and  after  that  the  estate  tail  is  deter- 
mined, may  re-enter,  which  is  the  intention  and  true  meaning  of 
Littleton  in  this  place.     And  where  it  is  said  in  this  section 

(^qugere 

II  (Je — en  in  L.  and  31.  and  Roh.  4- Quaere  hoc,  not  in  L.  and  31.  or 

•|[  tiel  added  in  L.  and  31.  and  Roh.  Roh. 

4  issue  added  in  L.  and  31.  and  §  cohert — arte  in  L.  and  31.  and 

Roh.  Roh. 


(1)  See  Boraston's  case,  3  Kep.  19.  Webb  v.  Hearing,  Cro.  Ja.  416.  King 
V.  Rumball,  Cro.  Ja.  448.  Chadock  v.  Cowley,  ibid.  695.  Fortescue  v.  Ab- 
bott, Poll.  479.  and  Sir  Thomas  Jones,  79;  and  Goodtitle  v.  Whitby,  1  Burr. 
228.  See  also  1  P.  W.  170;— and  Mr.  Fearne's  Essay  on  Contingent  Pte- 
mainders,  p.  241.  6th  ed. 


L.  3.  C.  5.  Sect.  365.    upon  Condition.  [225.  a. 

{qusere  hoc),  this  is  is  added  by  some  that  understood  not  this 

case,  and  is  not  in  the  originall. 

Note,  that  in  a  condition  consisting  of  divers  parts  in  the  con-  ^sm.  43J^  ^ 

junctive,  as  here  in  the  case  of  Littleton,  both  parts  must  be        *P" 

performed  according  to  the  old  rule,  [o]   Si plures  conditiones  [a]  Bract,  lib.  2. 

ascriptse  fuerunt  donationi  coniunctim,  omnibus  est  parendum,  ct  fo-  19.    Vide_ 

,    ^  .  7    .  •  N  .    •,  -  7     .  u        ^    T?,,*-   PI-  Com.  76.  m 

ad  veritatem  copulative  reqinritnr  quod  utraquepcvrs  sit  vera.  Uut  -^yimijeshe's  case 

otherwise  it  is  when  the  condition  is  in  the  disjunctive  (1),  for  the  &  foi.  107.  in 
same  author  in  that  case  saith,  Si  divisim,  cuilibet  vel  alter i  eorum  Fulmerston's 
satis  est  obtemperare.     Et  in  disjunctivis  sufficit  alteram  partem  ubfsupra!'^*^^""' 
esse  veram.     What  then  if  the  condition  or  limitation  be  both  in  (4  Rep.  52.  b.) 
the  conjunctive  and  disjunctive  :  As  if  a  man  make  a  lease  to  So  it  was  ad- 
the  husband  and  wife,  for  the  term  of  one  and  twenty  years,  ij|J°|' VanS*^' 
if  the  husband  and  wife  or  any  child  between  them  so  long  shall  pasch.  30  Eliz. 
live,  and  then  the  wife  dyeth  without  issue;  shall  the  lease  de-  inter  Bald wyn 
termin,  or  continue  during  the  life  of  the  husband  ?     And  the  *^'^^°';!;if37- 
answer  is,  that  it  shall  continue,  for  the  disjunctive  referreth  to  Trupennie's 
the  whole,  and  disjoyneth  not  only  the  latter  part,  as  to  the  case, 
child,  but  also  to  the  baron  and  feme,  so  as  the  sense  is,  if  the  (^  ^^p.  112.) 
baron,  fem,  or  any  child  shall  so  long  live. 

[6]  And  so  it  is  if  an  use  be  limited  to  certain  persons,  untill  ^^^  tfeJ"  fg^gg^pg; 
A.  shall  come  from  beyond  sea,  and  attaine  unto  his  full  age,  or  jg  Seignior 
dye,  if  he  doth  come  from  beyond  sea,  or  attain  to  his  full  age,  Mordant  vers, 
'the  use  doth  cease.  Sr^^^.rin 

the  King's  Bench. 


Sect.  365. 

A  LSO  a  man  cannot  plead  in  any  action,  that  an  estate  tvas  made  in 
fee,  or  in  fee  tayl,  or  for  term  of  life,  upon  condition  if  he  doth 
not  vouch  a  record  of  this,  or  show  a  tvriting  under  seal,  2^roving  the 
same  condition  (home  ne  poit  pleder  en  ascun  action,  que  estate  fuit  fait 
en  fee,  ou  en  fee  taile,  ou  pur  terme  de  vie,  sur  condition,  f  sil  ne 
voucha  on  record  de  ceo,  ou  monstra  un  escript  south  seale,  provant 
mesme  la  condition.)  For  it  is  a  common  learning,  that  a  man  by  plea 
shall  not  defeat  any  estate  of  freehold  by  force  of  any  such  condition, 
unless  he  sheweth  the  proof  of  the  condition  in  tvriting,  ^c.  unless  it  be 
in  some  special  cases,  ^c.  But  of  chattels  real,  as  of  a  lease  for  years, 
or  of  grants  of  ivards  made  by  guardians  in  chivalrie,  and  such  like, 
^e.  a  man  may  plead  that  such  leases  or  grants  were  made  upon  condi- 
tion, ^c.  without  shewing  any  writing  of  the  condition.  So  in  the  same 
manner  a  man  may  do  of  gifts  and  grants  of  chattels  ptersonals,  and 
of  contracts  personals,  ^c. 

f  que  added  in  L.  and  M.  and  Roh. 


(1)  If  the  condition  of  the  obligation  be  in  the  disjunctive,  and  give  the 
obligor  liberty  to  do  one  thing  or  another,  at  his  election,  and  one  of  the  things 
becomes  impossible,  the  obligation  in  some  cases  will  be  saved.  See  the  dis- 
tinctions taken  in  Eaton  &  Monox  v.  Laughter,  Cro.  Eliz.  398.  Baker  v. 
Morecomb,  ibid.  864.  Basket  v.  Basket,  2  Mod.  290.— Ant.  145.— [Note  135.] 


225.  a.  225.  b.J  Of  Estates    L.  3.  C.  5.  Sect.  365. 

l^J^'/'oP'  ' '  TN  any  action."  Be  the  action  real,  personal,  or  mixt,  if 
9  K  4.  25!  b!  *  condition  be  pleaded  to  defeat  a  freehold,  it  is  regularly 

26.  a.  '  true,  that  a  deed  must  be  shewed  forth  [a]  in  court  (2).     And 

6  H.  7.  S.  b.  the  reason  why  the  deed  shall  be  shewed  forth  to  the  court  is, 

7  H.  6  7^"  '  ^°'"  *^*^  ^^  every  deed  there  be  two  things  requisite  :  the  one, 
14  H.  8.  22.  b.  that  it  be  sufficient  in  law,  and  this  is  called  the  legall  part,  and 
28  Ass.  p.  1.  therefore  the  judgment  of  that  belongeth  to  the  judges  of  the 
\a\  Lib  10  fol  ^^^  '  *^^  Other  concernes  matter  of  fact,  as  sealing  and  delivery, 
92.  Doctor  "  and  this  belongs  to  the  jurors.  And  because  every  deed  ought 
Layfieid's  case,  to  approve  itself,  and  be  proved  by  others  too  ;  it  must  approve 
26  E  3  41  itself  upon  the  shewing  of  it  forth  in  court  in  two  manners. 

41  E.  3.  10.  ace,     (Ant.  6.  a.)     (10  Rep.  92.) 

First,  as  to  the  composition  of  the  words,  that  it  be  sufficient 
in  law,  and  that  the  court  shall  adjudge. 
(11  Rep.  26.  b.  J8^°  Secondly, of  ancient  time  if  the  deed  appeared  r395.1 
Dyer,  261.  b.  to  be  rased  or  interlined  in  places  materiall,  the  judges  L  b*  J 
Cr^^Cat'^sgr^*  adjudged  upon  their  view,  the  deed  to  be  voyd(l). 
Doc't.  Pla.  260.)  ^^ut  of  latter  time  the  judges  have  left  that  to  the  jurors  to  try 
(Post.  227.  whether  the  rasing  or  interlining  were  before  the  deliverie. 

^45  E  3^21  "^^^  there  is  a  difference  between  a  rent,  and  a  re-entry  ;  for 

Post.  808.  b.'  '  upon  a  gift  in  tail,  or  a  lease  for  life,  a  rent  may  be  reserved 
338.  a.  s.  214.)  without  deed,  but  a  condition  with  a  re-entrie  cannot  be  re- 
f'o^'c^'  n^'  ^?'     served  in  those  cases  without  deed. 

53,  &c.  Page  s 

case.  "  Writing  under  seal."     Which  Littleton  intendeth  to  be  a 

r  \^'  ^74*^6^'  ^^^^  ""^^^  ^^^^' 

lORep".  92.V  '         ^^"^  '^^^^  ^^^^  Littleton,  a  deed  under  seal.     For  though  the 
deed  be  inrolled,  yet  he  cannot  plead  the  inrolment  thereof, 
though  it  be  of  record.     And  though  it  be  exemplified  under 
\h]  Vide  32  H.  8.  the  great  seal,  [6]  yet  must  he  shew  forth  the  deed  itself  under 
1^  H^^l^^i'^  ?''■    ss^^j  as   Littleton  here  saith,  and  not  the  exemplification  (2)'|". 
And   so  when  Littleton  wrote,  no  constat,  or  inspeximus,  of  the 
king's  letters  patents  were  availeable  to  be  shewed  forth  in  court, 
(2  Inst.  672.        but  the  letters  patents  themselves  under  seal.      For  both  the 
5  Rep.  52,  53.)    constat  and  inspeximus  are  but  exemplifications  of  the  inrol- 
ment of  the  charters,  or  letters  patents ;  and  this  appeareth  by 
[c]  3  &  4  E.  6.     the  resolution  of  two  severall  [c]  parliaments,  one  holden  in 
cap.  4.  and  the  third  and  fourth  year  of  king  Edward  the  sixth,  and   the 

13  Eliz.  cap.  6,  Qther  in  the  thirteenth  year  of  queen  Elizabeth.  But  now  by 
those  statutes  the  exemplification  or  constat  under  the  great  seal 
of  the  inrolment  of  any  letters  patents  made  since  the  fourth  day 
of  February  anno  27  H.  8,  or  after  to  be  made,  shall  be  sufficient 
to  be  pleaded  and  shewed  forth  in  court,  as  well  against  the  king, 
as  any  other  person,  by  the  patentees  themselves  (whereof  there 


(2)  See  Bulst.  259.  160.     6  Mod.  237.     2  Salk.  498. 

(1)  ^Tis  to  be  presumed,  that  an  interlining,  if  the  contrary  is  not  proved, 
was  made  at  the  time  of  making  the  deed.  1  Keb.  21.  Note  to  the  Wth 
edition.  On  the  rasure,  or  interlining  of  deeds,  breaking  or  defacing  the  seak 
of  deeds,  and  cancelling  deeds,  see  1  Wood's  Conv.  808,  809.  Com.  Dig. 
Faits,  T.  1,  2  ;  and  Vin.  Abr.  Faits,  T.  U.  U.  2  X.  X.  2.  It  is  to  be  observed, 
that  the  cancelling  of  a  deed  does  not  divest  the  estate  from  the  persons  in 
whom  it  is  vested  by  the  deed.  1  Kep.  in  Cha.  100.  and  Gilb.  Rep.  236. — 
[Note  136.] 

(2)  f  On  giving  deeds  of  bargain  and  sale  in  evidence,  see  Bull.  Ni.  Pri.  255. 
10  Ann.  c.  18.  and  8  G.  2.  c.  6.  s.  21. 


L.  3.  C,  5.  Sect.  365.    upon  Condition.     [225.  b.  226.  a. 

was  some  doubt  [(?]  conceived  upon  the  said  statute  of  E.  6.)  and  [rf]  Dyer, 

by  all  and  every  other  person  and  persons  clayming  by,  from,  or  i  ^1'^- 1^^- 

under  them.     Which  statutes  are  general  and  beneficiall,  and  (Hard.  118.) 
especially  the  act  of  13  Eliz.  for  that  extends  not  only  to  lands,       oj  i  ^ 

tenements,  and  hereditaments,  but  to  every  other  thing  whatso-  j  jyi^j  jjy  v 
ever,  and  ought  to  be  favourably  construed  for  advancement  of 
the  remedie  and  right  of  the  subject  (3). 

The  difference  between  a  constat,  inspexim^is  and  a  vidimus, 

you  may  read  [e]  at  large  in  Page's  case.     But  none  of  them  by  [c]  Lib.  8.  fol.  8. 

law  ought  to  be  had,  but  only  of  the  inrolment  of  record,  and  i°  '^®  Prince's 

not  of  a  deed  or  any  other  writing  that  is  not  of  record,  and  no  p^^e's  ca«e 

deed,  &e.  can  be  inrolled,  unless  it  be  duly  and  lawfully  ac-  ubi  supra. 
knowledged. 

"Unless  it  be  in  some  special  cases,  &c."  Hereby  is  implyed,  33  E.  3.  Gard. 
that  if  a  gardian  in  chivalrie  in  the  right  of  the  heir  entreth  for  ^'^^-  ^^  ^- ^* 
a  condition  broken,  he  shall  plead  the  state  upon  condition  with-  ^^^^,  g^^^' 
out  shewing  of  any  deed,  because  his  interest  is  created  by  the  tit.  Monstrans 
law.  And  so  it  is  r/'l  of  a  tenant  by  statute  merchant  or  staple,  ^^'^  ^^^ll'  ^^^' 
or  tenant  by  elegit.  _  ...  (5  Rep.  75.  a.) 

Likewise  tenant  in  dower  shall  plead  a  condition,  &c.  without  (2  Cro.  217.) 
shewing  of  the  deed.  And  the  reason  of  these  and  the  like  cases,  i^^  ^^V-  93. 
is,  for  that  the  law  doth  create  these  estates,  and  they  come  not  35  jj  g  ^^j^. 
ip  by  him  that  entred  for  the  condition  broken,  so  as  they  might  Monstrans  des 
provide  for  the  shewing  of  the  deed,  but  they  come  to  the  land  Faits,  11.  b. 
by  authoritie  of  law,  and  therefore  the  law  will  allow  them  to  7  jj  5  '5 

plead  the  condition  without  shewing  of  it.  3  h.  6.  21. 

rase."]       [/*]  B®"-  But  the  lord  by  escheat,  albeit  his  estate  33  H.  6. 1. 
|_    a.      J  be  created  by  law,  shall  not  plead  a  condition  to  de-  r^«i'35  u  e 

feat  a  freehold  without  shewing  of  it,  because  the  ubi  supra. 
deed  doth  belong  unto  him.  [9]  35  H.  6. 

A  tenant  by  the  curtesie  shall  not  [g'\  plead  a  condition  made  ^^^  sup^a. 
by  his  wife,  and  a  re-entry  for  the  condition  broken   without 
shewing  the  deed ',  for  albeit  his  estate  be  created  by  law,  yet  the 
law  presumeth  that  he  had  the  possession  of  the  deeds  and  evi- 
dences belonging  to  his  wife. 

f  A]  But  lessees  for  years,  and  all  others  that  claim  by  any  [/;]  14  H.  8.  6. 
conveyance  from  the  party,  or  justifie  as  servant  by  command-  F/a  S^^'q^i^Jo  ■, 
ment,  &c.  must  shew  the  deed.  ^        v-    >    •) 

[t]  2i.  brought  an  ejectionejirmcv  against  E.  for  ejecting  him  [ij  44  E.  3.  22. 
out  of  the  manner  of  D.  which  he  held  for  term  of  yeares  of  the 
demise  of  6'. — E.  the  defendant  pleaded  that  B.  gave  the  said 
manner  to  P.  and  Katherine  his  wife  in  tail,  who  had  issue  E.  (6  Rep.  38.) 
the  defendant,  and  after  the  donees  infeoffed  G.  of  the  manner, 
upon  condition  that  he  should  demise  the  manner  for  yeares  to  R. 
the  plaintiff,  the  remainder  to  the  husband  and  to  the  wife,  &c. 
C.  did  demise  the  land  to  R.  the  plaintiff  for  years,  but  kept 
the  reversion  to  himself,  wherefore  Katherine  after  the  decease  (do.  Car.  442.) 
of  her  husband  entred  upon  the  plaintiff,  &c.  for  the  condition  ''^*^'^  ^^^^^  *^>s 
broken,  and  died;  after  whose  decease  the  land  descended  to  E.  !;qJ!|^'  ^7' Rep 
the  issue  in  tail,  &c.  now  defendant,  judgment  upon  action,  Ughtrod's  case. 
exception  was  taken  against  this  plea,  because  E.  the  defendant 
maintained  his  entry  by  force  of  a  condition  broken,  and  shewed 
forth  no  deed,  and  the  plea  was  ruled  to  be  good,  because  the 

thing 

(3)  See  also  27  Eliz.  9.  and  Bull.  iNi.  Pri.  22(j! 
Vol.  II.— 15 


226.  a.] 


11  Ed.  3.  ti*. 
Moustrans  des 
Faits,  175. 
45  E.  3.  8. 


(Cro.  Car.  372.) 


45  E.  3.  8.  b. 
Finch. 


10  H.  4.  9.  b. 
43  E.  3.  Vide 
10  E.  3.  41. 
Simile  in  dower. 


12  E.  1.  Feoff- 
ments &  Faits, 
114.     F.  N.  B, 
105.  b.    13  R.  2 
Monstrans  des 
Faits,  165. 
4  E.  4.  35,  &c. 
11  H.  7.  22.  b. 
6  H.  7.  8. 
9  E.  4.  25,  26. 


Of  Estates        L.  3.  C.  5.  Sect.  366. 

thing  was  executed,  and  therefore  he  need  not  shew  forth  the 
deed.  Nbta,  the  defendant  being  issue  in  tail  was  remitted  to 
the  estate  tail  (1). 

In  a  prc^cAjye  quod  reddat  against  S.  who  pleaded  that  R.  was 
seised,  and  infeoffed  him  in  mortgage  upon  condition  of  payment 
of  certain  money  at  a  day,  and  said  that  R.  paid  the  money  at 
the  day,  and  entred  judgment  of  the  writ :  exception  was  taken 
to  this  plea,  for  that  he  shewed  forth  no  deed  of  the  condition, 
and  it  was  ruled  that  he  need  not  shew  forth  the  deed  for  two 
causes.  1.  That  he  ought  not  to  shew  any  deed  to  the  demand- 
ant, because  the  demandant  is  a  stranger.  2.  It  might  be  when 
R.  paid  the  money,  and  the  condition  performed,  that  the  deed 
was  rebailed  to  R.  and  thereupon  the  plea  was  adjudged  good, 
and  the  writ  abated. 

If  land  be  mortgaged  upon  condition,  and  the  mortgagee  let- 
teth  the  lands  for  years,  reserving  a  rent,  the  condition  is  per- 
formed, the  mortgagor  re-enters,  in  an  action  of  debt  brought 
for  the  rent  the  lessee  shall  plead  the  condition  and  the  re-entry 
without  shewing  forth  any  deed. 

In  an  assise  the  tenant  pleads  a  feoffment  of  the  ancestor  of 
the  plaintiff  unto  him,  &c.  the  plaintiff  saith  that  the  feoffment 
was  upon  condition,  &c.  and  that  the  condition  was  broken,  and 
pleads  a  re-entry,  and  that  the  tenant  entred  and  took  away  the 
chest  in  which  the  deed  was,  and  yet  detaineth  the  same,  the 
plaintiff  shall  not  in  this  case  be  enforced  to  shew  the  deed. 

If  a  woman  give  lands  to  a  man  and  his  heirs  by  deed  or 
without  generally,  ahe  may  in  pleading  aver  the  same  to  be 
causa  matrimonii prcclocuti,  albeit  she  hath  nothing  in  writing 
to  prove  the  same,  the  reason  whereof  see  Sect.  330. 

'^Btit  of  chattels  real,  as  of  a  lease  for  years,  &c."  This  is 
apparent. 

14  H.  8.  22.  b.     (Doc.  Pla.  51.)     (See  PIo.  23.  a.)     (1  Roll.  Abr.  413.) 


Sect.  366. 

ALSO  albeit  a  man  cannot  in  any  action  plead  a  condition  which 
toucheth,  ^  concernes  a  freehold,  ivithout  shelving  writing  of  this,  a^ 
is  aforesaid,  yet  a  man  may  he  aided  upon  such  a  condition  hy  the  verdict 
of  12  men  taken  at  large  in  an  assise  of  novel  disseisin,  or  in  any  other 
action  where  the  justices  will  take  the  verdict  of  12  jurors  at  large  (I'ou 
les  justices  voilent  prender  *  le  verdict  de  xii.  jurors  a  large.)  As  put 
the  case,  a  man  seised  of  certain  land  in  fee  letteth  the  same  land  to 
another  for  term  of  life  without  deed,  upon  condition  to  render  to  the 
lessor  a  certain  rent,  and  for  default  of  payment  a  re-entrie,  ^c.  by  force 
whereof  the  lessee  is  seised  as  of  freehold,  and  after  the  rent  is  behind,  by 

which 

*  le — per  in  L.  and  M.  and  Roh. 


(1)  TJiis  is  the  reason  of  this  case,  for  now  he  claims  above  the  condition, 
and  therefore  need  not  sheic  the  deed.  Infra,  227.  b.  Lord  Nott.  MSS. — 
[Note  137.] 


I 


L.  3.  C.  5.  Sect.  366.    upon  Condition.   [226.  a.  226.  b. 

which  the  lessor  entereth  into  the  land,  and  after  the  lessee  arraine  an 
assise  of  novel  disseisin  of  the  land  against  the  lessor,  ivho  pleads  that  he 
did  no  wrong  nor  disseisin,  and  upon  this  the  assise  is  taken  ;  in  this  case 
the  recognitors  of  the  assise  mag  sag  and  render  to  the  justices  their  ver- 
dict at  large  upon  the  ivhole  matter,  as  to  sag,  that  the  defendant  was 
seised  of  the  land  in  his  demesne  as  of  fee,  and  so  seised,  let  the  same 
land  to  the  plaintife  for  terme  of  his  life,  j-endring  to  the  lessor  such  a 
yearelg  rent  payable  at  such  a  feast,  ^e.  up>on  such  condition,  that  if  the 
rent  were  behinde  at  any  such  feast  at  which  it  ought  to  bee  paid  (que  si  le 
rent  fuit  aderere  a  ascun  tiel  feast  t  a  que  doit  estre  paie),  then  it 
should  bee  lawfullfor  the  lessor  to  eriter,  ^c.  by  force  of  ivhich  lease  the 
plaintife  was  seised  in  his  demesne  as  of  freehold,  and  that  aftenvards 
the  rent  was  behinde  at  such  a  feast,  ^c.  (et  que  puis  apres  le  rent  fuit 
aderere  a  tiel  feast,  J  &c.)  by  which  the  lessor  entred  into  the  land  upon 
the  possession  of  the  lessee,  and  prayed  the  discretion  of  the  justices,  if 
this  bee  a  disseisin  done  to  the  plaintife  or  not ;  then  for  that  it  appear- 
eth  to  the  justice  (Udonque  per  ceo  que  appiert  a  les  justices),  that  this 
was  no  disseisin  to  the  plaintife,  insomuch  as  the  entrie  of  the  lessor  was 
congeable  07i  him,  the  justices  ought  to  give  judgment  that  the  plaintife 
shall  not  take  any  thing  by  his  tvrit  of  assise.  And  so  in  such  case  the 
lessor  shall  bee  aided,  and  yet  no  ivriting  was  ever  made  of  the  condition. 
For  as  ivell  as  the  jurors  may  have  conusance  of  the  lease,  they  also  as 
well  may  have  conusance  of  the  condition  which  was  declared  and  re- 
hearsed upon  the  lease  (Car  cibien  que  les  jurors  poient  aver  conusance 
de  le  §  lease,  auxy  bien  ils  poient  aver  conusance  de  le  condition  que 
fuit  declare  &  rehearse  sur  le  leas. ) 

"  ITERDICT  of  12  men  (2)."      Veredictum  quasi  dictum  veri-  (Post.  253.  b. 

tatis^  as  judicium  est  quasi  juris  dictum.     Et  sicut  ad  ques-  261-  b.) 
tionem  juris,  iion  respondent  juratores  sedjudices  :  sic  ad  qumstio-  j^j^^'  g'  f^'  ^3  * 
nemfactinon  respondent  judices  sed  juratores.     For  jurors  are  to  Lib.  11.  fo.  10. 
try  the  fact,  and  the  judges  ought  to  judge  according  (^^*'-^^- ^.■'^°*'" 

[2Q6."|  to  the  law  that  riseth  upon  the  fact,  for  ^^  ex  facto  ^^^  69.3,°694. 
b.       \  jus  oritur.  698,  699,' 700. 

711.  717.  725. 
Hob.  117.     4  Rep.  65.  b.     Cro.  El.  699.  1  Sid.  27.  191.  194.  203.     9  Rep.  67.  b.) 

''  Taken  at  large."  There  be  two  kindes  of  verdicts;  viz.  one  ,^  -p^  ^2  1,3.) 
generall,  and  another  at  large  or  especiall.  As  in  an  assize  of 
novel  disseisin,  brought  by  A.  against  B.  the  plaintife  makes  his 
plaint,  Quod  B.  disseisivit  eum  de  20  acris  tense  cum pcrtinenfiis  ; 
the  tenant  pleades,  Quod  ijjse  nullam  injuriam  seu  dinseisinam 
prsefalo  A.  inde  fecit,  &c.  The  recognitors  of  the  assise  doe  finde, 
Quod  p>i'sedict.  A.  injusth  &  sinejudicio  disseisivit  pracdict.  B. 
de praedict.  20  acris  terrce  cum  pertinent^  &c.    This  is  a  generall 

verdict. 


a  not  in  L.  and  M.  or  Roh.  §  lease,  auxy  bien  ils  poient  aver 

An  added  in  L.  and  M.  and  Roll.        conusance  de  le,  not  in  L.  and  31.  w 
Et  added  in  L.  and  M.  and  Roh.         Roh. 


(2)  See  Bacon's  Abr.  vol.  5.  281.  Vin.  vol.  21.  373.  Com.  Dig.  Abate- 
ment, (I.  34.)  Amendment,  (P.]  Appeals,  (Gr.  14.)  Estoppel,  (E.  10.) 
Evidence,  (A.  5.)  Pleader,  (C.  87.  E.  38.  R.  13.  S.  1.)     Prerogative,  (D.  76.) 


226.  b.  227.  a.J        Of  Estates         L.  3.  C.  5.  Sect  366. 

verdict.     The  like  law  it  is  if  they  finde  it  negatively.     And 

fPlo.  93.  a.)        Littleton  here  putleth  a  case  of  a  verdict  at  large,  or  a  speciall 

(Post.  227, 228.)  ygj-dict ;  and  it  is  therefore  called  a  speciall  verdict,  or  a  verdict 

at  large,  because  they  finde  the  speciall  matter  at  large,  and 

leave  the  judgement  of  law  thereupon  to  the  court,  of  which 

[/]  Trin.  33  E.  1.  kinde  of  verdict  it  is  said,  [Z]  Omnis  condusio  honi  &  verijudicii 

Coram  Rege        sequitur  ex  bonis  &  veris  prsemissis  et  dictis  juratorum. 

NottinThesaur.       ^^^  though  Littleton  here  puts  his  case  of  a  verdict  at  large 

upon  a  generall  issue  (which  in  the  case  he  putts,  it  was  necessary 

for  the  tenant  to  pleade)  yet  when  issue  is  joyned  upon  some 

speciall  point,  the  jury,  as  shall  be  said  hereafter  in  this  section, 

may  finde  the  speciall  matter  if  it  be  doubtfull  in  law,  for  as 

much  doubt  may  arise  upon  one  point  upon  the  speciall  issue  as 

,  „  .      „  J  upon  the  generall  issue.  And  as  a  speciall  verdict  may 

Staunf!  PL  Cor.    be  found  in  Common  fii^  Pleas,  so  may  it  also  bee  r9S7."| 

164,165.  founde  in  Pleas  of  the  Crowne,  or  criminal  causes  that  L     ^-     J 

41  286  °287'      concerne  life  or  member. 

44  E.  3.  44.   41  E.  3.  Coron.  451.     (Cro.  Eliz.  474.  lb.  471.  113, 114.  653. 

6  Rep.  46.  b.) 

40  E.  3. 15.  A   verdict   finding    matter   incertainely   or   ambiguously   is 

20  E.  3.  Amend-  JQgugicient,  and  no  judgement  shall  be  given  thereupon ;  as  if  an 

18  E.'3.  49.  in  executor  plead  ^^?cmme?i<  adminisfre,  and  issue  is  joyned  there- 

Cessavit.  upon,  and  the  jury  finde  that  the  defendant  have  goods  within 

30  E.  3.  23.  jjjg  iiands  to  be  administred,  but  finde  not  to  what  value,  this  is 

(8  Rep.  65.)  incertaine,  and  therefore  insufficient. 

17  E.  3.  47.  A  verdict  that  finds  part  of  the  issue,  and  finding  nothing  for 

18  E.  3.  48.  the  residue,  this  is  insufficient  for  the  whole,  because  they  have 
18  E  3  66  ^^^  tried  the  whole  issue  wherewith  they  are  charged.  As  if  an 
15  E.  3.  information  of  intrusion  bee  brought  against  one  for  intruding 
.Judgement,  58.  i^to  a  mesuagc,  and  100  acres  of  land,  upon  the  generall  issue 
7H  6  5  *^^  J^^y  finde  against  the  defendant  for  the  land,  but  saith  no- 

7  E.'4.  24.  thing  for  the  house,  this  is  insufficient  for  the  whole,  and  so  was 
28  H.  6. 10.  it  twice  adjudged,  [w]  But  if  the  jury  give  a  verdict  of  the 
•'>*^r'  ll'^'Ab^^  whole  issue,  and  of  more,  &c.  that  which  is  more  is  surplusage,  and 
722.  10  Rep.  shall  not  [«]  stay  judgement;  for  Utile  j^er  inutile  non  vittatiw, 
119.  Hob.  64.  but  necessary  incidents  required  by  law  the  jury  may  finde. 

6  Rep.  47. 

2  Roll.  Abr,  702.  706.  Dyer,  346.  b.  300.  b.  Post.  303.  a.  b.  Doctr.  Pla.  288,  289. 
Hob.  64.  Cro.  El.  174.  2  Roll.  Abr.  708.  Hob.  18.  9  Rep.  67.  b.  112.  4  Rep.  65. 
Ante,114.b.  Cro.  El.  110.  10  Rep.  97.  b.)  [w]  Ilil.  25  Eliz.  in  a  writ  of  errorbe- 
tweene  Brace  and  the  Queene.  in  the  Exchequer  Chamber,  Mich.  28  &  29  Eliz.  inter 
(iomtrsal  &  Gomersal,  in  account  in  the  King's  bench,  [a]  32  E.  3.  Cessavit,  25. 
Vide  Sect.  484,  485.  (Post.  282.)  Vide  Sect.  58.  13  E.  3.  Garr.  26.  15  E.  3.  Ass. 
322.     17  E.  3.  6.    18  Ass.  2.     35  Ass.  8. 

If  the  matter  and  substance  of  the  issue  bee  found,  it  is  suffi- 
cient, as  Littleton  himselfe  sayeth  hereafter. 

Estoppells  which  bind  the  interest  of  the  land,  as  the  taking 

of  a  lease  of  a  man's  owne  land  by  deed  indented,  and  the  like, 

being  specially  found  by  the  jurie,  the  court  ought  to  judge 

according  to  the  speciall  matter;  for  albeit  estoppels  regularly 

must  be  pleaded  and  relied  upon  by  an  apt  conclusion,  and  the 

jury  is  sworne  ad  veritafem  dicendam,  yet  when  they  finde  veri- 

tatem  factiy  they  pursue  well  their  oath,  and  the  court  ought  to 

[6]  1  H.  4.  6.  b.   adjudge  according  to  law.     [6]  So  may  the  jurie  find  a  warrantie 

27  H.  8.  22.  b.     being  given  in  evidence,  though  it  be  not  pleaded,  because  it 

Lib!^4™oL  W.      bindeth  the  right,  unlesse  it  be  in  a  writ  of  right,  when  the  mise 

Rawlin's  Case,     is  joyned  upon  the  meere  right. 

<fcibid.  Pledol's 

case.     Hil.  31  Eliz.  betweene  Sutton  and  Dicons  in  the  Common  Place,  the  case  of 
the  lease  for  yeares  by  deed  indented.     34  E.  3.  Droit,  29.     (Post.  352.     Ant.  47.  b.         After 
Dec.  Pla.  re4.     Post.  283.    Cro.  El.  141.) 


L.  3.  C.  5.  Sect.  366.       upon  Condition.  [227.  b. 

[Q27.'l     [c]  B®"  After  the  verdict  recorded  the  jury  cannot  M  7  R.  2. 
b.     J   vary  from  it,  but  before  it  be  recorded  they  may  vary  p^^^Q®'  ^*^|' 

from  the  first  offer  of  their  verdict,  and  that  verdict  man's  case  211. 
which  is  recorded  shall  stand  :  also  they  may  vary  from  a  privy  11  H.  4.  2. 
verdict.  20  Ass.  12. 

An  issue  found  by  verdict  shall  alwayes  be  intended  true  22  Ass!  23.' 
untill  it  be  reversed  by  attaint,  and  thereupon  upon  the  attaint  5  H.  7.22. 
no  supersedeas  is  grantable  by  law.  ^oh^R^  ^'^'  f 

If  the  jurie  after  their  evidence  given  unto  them  at  the  barre,  justice  SpUma'u 
doe  at  their  owne   charges  eat  or  drinke  either  before  or  after  in  the  King's 
they  be  agreed  on  their  verdict,  it  is  finable,  but  it  shall  not  Bench, 
avoid  the  verdict :  but  if  before  they  be  agreed  on  their  verdict,  35  jj'  g'     * 
they  eate  or  drinke  at  the  charge  of  the  plaintife,  if  the  verdict  Examin,  17. 
be  given  for  him,  it  shall  avoid   the  verdict :  but  if  it  be  given  29  n.s.37.  Dier. 
for  the  defendant,  it  shall  not  avoid  it,  &  sic  I  converso.  [fZ]  But  ^^  u^s  bl 
if  after  they  be  agreed   on  their  verdict   they  eat  or  drinke  at  4  et5  Eliz.'218. 
the  charge  of  him  for  whom  they  do  passe,  it  shall  not  avoid  the  14  H.  7. 1. 

6  E.  6.    in  the  Common  Place, 
[e]  If  the  plaintife  after  evidence  given,  and  the  jury  departed  [e]  il  H.  4.  IG, 
from  the  barre,  or  any  for  him,  do  deliver  any  letter  from  the   J'  ^^'^^^- 

,..„  n    1       ■  •  1  ••  Jurors  Br.  8. 

plamtiie  to  any  or  the  jury  concerning  the  matter  in  issue,  or  any  vide  Dier 
evidence,  or  any  escrowle  touching  the  matter  in  issue,  which  ubi  supra, 
was  not  given  in  evidence,  it  shall  avoid  the  verdict,  if  it  be  found  (^  o^  o^l'^'^^'^" 
for  the  plaintife,  but  not  if  it  be  found  for  the  defendant  &  sic  e  i  lqq_  jg^ 
converso.  But  if  the  jury  carry  away  any  writing  unsealed,  which  Cro.  Jac.  121. 
was  given  in  evidence  in  open  court,  this  shall  not  avoid  their  p *^;,2^„^'l 
verdict,  albeit  they  should  not  have  carryed  it  with  them.  ubi  siipra." 

By  the  law  of  England  a  jury,  after  their  evidence  given  upon  (Mo.  452. 
the  issue,  ought  to  be  kept  together  in  some  convenient  place,  2  Boll.  Abr. 

.  .  .  r  /     tjlA     71  f)     71fi  ^ 

without    meat  or   drinke,   fire   or  candle,   which   some   bookes       '       ' 

[/]  call  an  imprisonment,  and  without  speech  with  any,  unlesse  [/]  24  E.  3.  75. 

it  be  the  bailife,  and  with   him  only  if  they  be  agreed.     After  (l  Cro.  Jac. 

.  J  J  G  ,        ixi   616  ) 

they  be  agreed  they  may  in  causes  between  party  and  party  give        '       '' 

a  verdict,  and  if  the  court  be  risen,  give  a  privy  verdict  before 

any  of  the  judges  of  the  court,  and  then  they  may  eat  and  drinke, 

and  the  next  morning  in  open  court  they  may  either  afiirme  or 

alter  their  privy  verdict,  and  that  which  is  given  in  court  shall 

stand.     But  in  criminall  cases  of  life  or  member,  the  jury  can 

give  no  privy  verdict,  but  they  must  give   it  openly  in   court. 

And  hereby  appeareth  another  division  of  verdicts,  viz.  a  pub- 

lique  verdict  openly  given  in   court,  and  a  privy  verdict  given 

out  of  the  court  before  any  of  the  judges,  as  aforesaid. 

A  jury  sworne  and  charged  in  case  of  life  or  member,  cannot  21  E,  3. 18. 

be  discharged  by  the  court  or  any  other,  but  they  ought  to  give  (Ant.  139.  b. 

a  verdict.     And  the  king  cannot  be  non-suit,  for  he  is  in  judge-  ^  ^^"P*  ^'' 

mcnt  of  law  ever  present  in  court  :  but  a  common  person  may 

be  nonsuit. 

"  In  an  assise  of  novel  disseisin,  or  in  any  other  action,  &c."  AV.  2.  cap.  30. 
Here  it  is  to  bee  observed,  that  a  speciall  verdict,  or  at  large,  ^  ^^-  j-  Ij^- 
may  be  given  in  any  action,  and   upon   any  issue,  be  the  issue  9  jj  7  13] 
geuerall  or  speciall  :  and  albeit  there  be  some  contrary  opinions  23  II.  8.  tit. 
in  our  bookes,  yet  the  law  is  now  settled  in  this  point.  }\"^}y  ■?[•■  ^^' 

'  •'  ^11  Ehz.  Dier, 

283,  284.  3  E.  3.  Itinera  North.  284,  286.  43  Ass.  31.  26  H.  8.  5.  44  E.  3.  44. 
F.  tit.  Coron.  94.  44  Ass.  17.  45  E.  3.  20.  PI.  Com.  92.  9  H.  7.  3.  Vide  lib.  9.  12,  13, 
Cowman's  case.    And  see  there  many  other  authorities.      31  Ass.  pi.  21.  10  H.  4.  9. 


227.  b.  228.  a.]      Of  Estates  L.  3.  C.  5.  Sect.  367. 

^' By  wliicli  the  lessor  entereih."  Here  it  appeareth  that  the 
condition  is  executed  by  re-entry,  and  yet  the  lessor  after  his 
re-entry  shall  not,  by  the  opinion  of  Littleton,  plead  the  condition 
without  shewing  the  deed,  because  he  was  party  and  privy  to  the 
condition,  for  the  parties  must  shew  forth  the  deed,  unlesse  it 
be  by  the  act  and  wrong  of  his  adversary,  as  hath  becne  said ; 
[«i]  but  an  estranger  which  is  not  privie  to  the  condition,  nor 
claimeth  under  the  same,  as  in  the  cases  abovesaid  appeareth, 
shall  not  after  the  condition  is  executed  in  pleading  be  iuforced 
to  shew  forth  the  deed  :  and  by  this  diversitie  all  the  bookes  and 
authorities  in  law  which  seeme  to  be  at  variance  are  reconciled. 
See  also  for  this  matter  the  section  next  followino-. 


[fli]  See  more 
before  in  this 
chapter,  sect. 
365.  (Sid.  369. 
6  Rep.  33.) 


10  Ass.  p.  9. 
21  Ass.  28. 
17  Ass  20. 
31  Ass.  21. 
23  Ass.  2. 
39  E.  3.  28. 
44  E.  3.  22. 

10  H.  4.  9. 

11  H.  7.22. 


"  Tlie  recognitors  of  the  assise  may  say,  d'c."  Here  it  ap- 
peareth that  the  jurors  may  finde  the  fact,  albeit  the  deed  be  not 
shewed  in  evidence,  and  the  rather  for  that  the  condition  upon 
the  livery  (as  hath  beene  said)  is  good,  albeit  there  be  no  deed 
at  all. 


7  H.  5.  5.     9  E.  4.  26.     18  E.  4.  412. 
(Ant.  225.  Cro.  Jac.  336.) 


15  E.  4.  16,  17. 


^'  And  prayed  the  discretion  of  the  justices.^'  That  is  to  say, 
they  (having  declared  the  speciall  matter)  pray  the  discretion  of 
the  justices;  which  is  as  much  to  say,  as,  that  they  would  dis- 
cerne  what  the  law  adjudgeth  thereupon,  whether  for  the  de- 
mandant, or  for  the  tenant;  for  as  by  the  authoritie  of  Littleton, 
discretio  est  discernere  per  legem,  q^iid  sit  Just  urn,  that  is,  to  dis- 
cerne  by  the  right  line  of  law,  and  not  by  the  crooked  cord  of 
private  opinion,  which  the  vulgar  call  discretion :  Si  a  jure  dis- 
Lib.  10.  fo.  4.  cedas,  vagus  cris,  &  erunt  omnia  omnibtLS  incerta  :  and  therefore 
ease  de  Sewers,  commissions  that  authorise  any  to  proceed,  secundum  sanas  dis- 
cretiones  vestras,  is  as  much  to  say,  as,  sectcndum  legem,  &  consue- 
iudinem  Anglice. 

"  For  as  well  as  the  Jurors  may  have  conusance,  &c."  Hereby 
it  appeareth  that  they  that  have  conusance  of  any  thing,  are 
to  have  conusance  also  of  all  incidents  and  dependants  there- 
upon, for  an  incident  is  a  thing  necessarily  depending  upon 
another. 
1  E.  3. 17.  in  0^  If  a  deed  be  made  and  dated  in  a  forraine  king-  r338.~| 

(iraeye's  case,      dome,  of  lands  within  England,  yet  if  liverie  and  seisin  L     ^-     J 
be  made,  secundum  formam  carta;,  the  land  shall  passe, 
for  it  passeth  by  the  liverie. 


Sect.   367. 


TN  the  same  manner  it  is  of  a  feoffment  in  fee,  or  gift  in  taile,  upon 
condition  altliough  no  writing  were  ever  made  of  it^.  And  as  it  is 
sayd  of  a  verdict  at  large  in  an  assise,  ^-c.  in  the  same  manner  it  is  of  a 
writ  ofentrie  founded  ujjon  a  disseisin  ;  and  in  all  other  actions  where  the 
justices  will  take  the  verdict  at  large,  there  where  such  verdict  at  large  is 
made,  the  manner  of  the  whole  entrie  is  put  in  the  issue  (et  en  touts 

auters 

*  &c.  in  L.  and  M.  and  Koh. 


L.  3.  C.  5.  Sect.  368,369.  upon  Condition.  [228.  a.  228.  b. 

auters  actions  ou  les  justices  voylent  prender  le  verdict  a  large,  y  t  ^3, 
ou  tiel  verdict  a  large  est  fait,  la  manner  del  entrie  entire  est  mis  en 

Tissue),  ^e. 

AND  it  is  to  be  observed,  that  the  court  cannot  refuse  a  speciall 
verdict,  if  it  bee  pertinent  to  the  matter  put  in  issue.     See 
the  section  nest  preceding. 

"  Verdict  at  large."     It  is  called  a  verdict  at  large  because  it  (9  Rep.  13.) 
findeth  the  matter  at  large,  and  leaves  it  to  the  judgement  of  the  See  the  Section 
court;  or  it  is  called  a  special  verdict,  because  it  findeth  the  spe-  ?i^,f'T)^*'^^°^''lfQ 
ciall  matter,  &c.     So  as  hereby  it  appeareth,  that  a  verdict  (as  ^nte,  226.) 
hath  beene  said)  is  two  fold,  viz.  a  verdict  at  large,  or  a  speciall 
verdict,  (which  is  all  one)  whereof  Littleton  here  speaketh ;  and 
a  generall  verdict  that  is  generally  found  according  to  the  issue, 
as  if  the  issue  be  not  guilty,  to  finde  the  partie  guiltie  or  not 
guiltie  generally,  &  sic  de  cseteris.    There  is  also  a  verdict  given  gpe  tijg  ^^.^^ 
in  open  court,  and  a  privy  verdict  given  out  of  court  before  any  preceding 
of  the  judges  of  the  court,  so  called  because  it  ought  to  bee  kept  Section, 
secret  and  privie  from  each  of  the  parties,  before  it  be  affirmed 
in  court. 

Sect.  368. 

ALSO  in  such  case  where  the  enquest  may  give  their  verdict  at  large, 
if  they  will  take  upon  them  the  knowledge  of  the  law  upon  the  mat- 
ter, they  may  give  their  verdict  ge^ierally,  as  is  put  in  their  charge;  as 
in  the  case  aforesaid  they  may  well  say,  that  the  lessor  did  not  disseise 
the  lessee,  if  they  will,  ^c. 

ALTHOUGrH  the  jurie  if  they  will  take  upon  them  (as  Lit-  (8  Rep.  65.) 
tletoii  here  saith)  the  knowledge  of  the  law,  may  give  a 
generall  verdict,  yet  it  is  dangerous  for  them  so  to  doe,  for  if 
they  doe  mistake  the  law,  they  runne  into  the  danger   of  an 
attaint;   therefore  to  find  the  speciall  matter  is  the  safest  way  (4  Rep.  53.) 
where  the  case  is  doubtfull. 

[^^Q-]  js^Sect.  369. 


ALSO  in  the  same  case,  if  the  case  loere  such,  that  after  that,  that  the 
lessor  had  entredfor  default  of  payment,  (j-c.  that  the  lessee  had  en- 
tered upon  the  lessor,  and  him  disseised,  in  this  case  if  the  lessor  arraigne 
an  assise  against  the  lessee,  the  lessee  may  harre  him  of  the  assise;  for 
hee  may  pleade  against  him  in  bar,  how  the  lessor  tvho  is  pi.  made  a 
lease  to  the  defen.  for  term  of  his  life,  saving  the  reversion  to  the  pi. 
which  is  a  good  plea  in  bar,  insomuch  as  hee  acknowledges  the  reversion 
to  be  to  the  pi.  *  Li  this  case  the  plaintif  hath  no  matter  to  ayd  him- 
self e  (le  plaintif e  n'ad  4-  ascun  matter  de  luy  ayder),  but  the  condition 

made 

f  par  la  ou  tiel  verdict  a  large  fait         *  And  added  in  L.    and    M.   and 
la  nature  de  matter  mys  en  Tissue,     Roh. 
X.  and  M.  and  Roh.  \.  ascun  not  in  L.  and  M.  or  Roh. 


228.  b.  229.  a.]  Of  Estates        L.  3.  C.  5.  Sect.  370. 

made  upon  the  lease,  ^  this  he  cannot  plead,  because  he  hath  not  any 
writing  of  this :  and  inasmuch  as  he  cannot  answere  the  bar,  he  shal  be 
barred.  And  so  in  this  case  you  may  see  that  a  man  is  disseised  (en 
cest  casa  poyes  veier  que  home  est  |  disseisee),  ^  yet  he  shal  not  have 
assise.  And  yet  if  the  lessee  be  pi.  and  the  lessor  def.  he  shal  bar  the 
lessee  by  verdict  of  the  assise,  ^c.  But  in  this  case  where  the  lessee  is 
def.  if  he  will  not  plead  the  said  plea  in  bar,  but  plead  nul  tort,  nul 
diss,  then  the  lessor  shall  recover  by  assise,  causa  qua  supra. 

"  J>ECA  USE  he  hath  not  any  icriting  of  this."  Hereby  it 
also  appeareth,  that  albeit  the  condition  was  executed  by 
re-entrie,  yet  the  lessor  cannot  plead  it  without  shewing  of  a 
deed.  But  of  this  matter  sufficient  hath  beene  said  before  in 
the  two  next  preceding  sections. 

IS  E.  4.  10.  "  Which  is  a  good  plea  in  bar."    In  a  case  where  there  have 

12  Ass.  38.  beene  some  varietie  of  opinions  in  our  books,  Littleton  here 

26  11%  Bar  9  cleereth  the  doubt,  and  that  upon  a  good  ground.    For  hee  him- 

38  Ass.  26.  4.  selfe  reporteth  in  our  bookes,  that  it  was  holden  by  all  the  jus- 

31  Ass.  26.  tices  of  England,  that  a  lease  for  life,  the  reversion  to  the  plain- 

43  Ass  18  *^^®'  ^^^^  ^  S'^O'^  barre  in  an  assise,  and  also  that  a  lease  for  yeares, 

44  Ass!  3. '  the  reversion  to  the  plaintife,  might  be  pleaded  in  an  assise :  and 
18  E.  3.  Ass.  77.  go  of  a  feoffment  in  fee  with  warrantie.  And  herein  the  diversitie 
18  As  ^22^'^'^'^"  of  pleading  is  to  be  observed;  for  in  the  case  here  put  by  Little- 
4  Eliz.Dy.  207.  ton  of  a  lease  for  life,  the  tenant  shall  pleade  it  in 

8  Eliz.  Dy.  246.  barre;  but  in  a  case  of  a  lease  for  JS@°"yeares,  or  an  ["299. ~| 
(Ant.  201.  a.)  estate  of  tenant  by  statute  or  elegit,  the  defendant  L  ^-  J 
shall  not  plead  in  bar,  as  to  say,  assisa  non,  &c.  but 
justifie  by  force  of  the  lease,  &c.  and  conclude,  &  assint  sans 
tort.  And  if  the  tenant  of  the  freehold  be  not  named,  he  shall 
pleade  nul  tenant  de  franktenement  nosnie  en  le  hriefe:  and  in 
the  case  of  the  feoffment  with  wari'anty  he  must  relie  upon  the 
warrantie. 


Sect.  370. 

^ND  for  that  such  conditions  are  most  commonly  put  and  specified  in 
deeds  indented,  somewhat  shall  bee  here  said  {to  thee,  my  sonne)  of  an  (1)  in- 
denture 

J  disseisie — seisie  in  L.  and  M.  and  Roh. 


(1)  In  addition  to  what  has  been  observed  in  note  4,  to  page  143.  b.  it 
may  be  remarked,  that  all  deeds  were  formerly  called  charters. — Before  the 
indenting  of  them  came  into  use,  when  there  were  more  parties  than  one 
interested  in  them,  there  were  as  many  parts  of  them  taken  as  there  were  par- 
ties interested,  and  one  part  was  delivered  to  each  of  the  parties :  these  multi- 
plied parts  were  called  Chartse  parielse,  or  par icolae.  The  Chartse  paridx,  or 
paricolse,  were  superseded,  in  a  grea^  measure,  by  the  Chartse  partitse.  One 
part  of  the  Chartse  partitse  was  written  on  a  piece  of  vellum  or  parchment, 
beginning  about  the  middle  and  continuing  to  the  end  of  each  side.  This 
prevailed  as  early  as  the  times  of  the  Saxons,  as  appears  bv  the  will  of  uEthel- 
vyrd,  a  nobleman   of  Kent,  dated  in  958:   by  that   of  prince  iEthelstan, 

eldest 


L.  3.  C.  5.  Sect.  370.      upon  Condition.  [229.  a. 

denture  and  of  a  deed  pol{2)  concerning  conditions.  And  it  is  to  bee 
understood,  that  if  the  indenture  be  bipartite,  or  tripartite  or  quadri- 
partite, all  the  parts  of  the  indenture  are  but  one  deed  in  law,  and  every 
part  of  the  indenture  is  of  as  great  force  and  effect  as  all  the  parts 
together  be  (3). 
"   TN  deeds  indented:'     Those  are  called  by  severall  names,  as  Vide  sect.  217. 

scriptum  indentatum,  carta  indentata,  scriptura  indentata, 
indentura,  litcroi  indenfatce.  An  indenture  is  a  writing  con- 
taining a  conveyance,  bargaine,  contract,  covenants,  or  agree- 
ments betweene  two  or  more,  and  is  indented  in  the  top  or  side 
answerable  to  another  that  likewise  comprehendeth  the  self  same  (Ant.  liS.  b.) 
matter,  and  is  called  an  indenture,  for  that  it  is  so  indented,  and 
is  called  in  Greeke  o-viA.y^ct.<pov. 

If  a  deed  beginneth,  hcec  indentura,  &e.  and  in  troth  the  parch-  Lib.  5.  fo.  20. 
ment  or  paper  is  not  indented,  this  is  no  indenture,  because  words  ^g  Ron'^Abr  22 
cannot  make  it  indented.    But  if  the  deed  be  actually  indented,  \  ins°t.'672.) 

and 


eldest  son  of  king  Ethelred  the  2d;  by  a  charter  of  archbishop  Eadsi,  made 
about  the  year  1045 ;  and  by  other  Saxon  documents  preserved  in  the  library 
of  Mr.  Astle ;  in  all  which  the  parchments  are  cut  in  straight  lines.  Straight 
lines  continued  to  be  generally  used  till  the  latter  end  of  the  reign  of  king 
Henry  III.  Afterwards  the  cut  through  the  parchment  was  made  in  a  waving 
or  undulating  line ;  and  the  practice  of  writing  an  intermediate  sentence,  or 
drawing  an  intermediate  figure,  was  gradually  disused,  and  the  word  Cyro- 
graphum  adopted.  In  process  of  time  it  became  the  practice  to  indent  this  line 
in  small  notches  or  angles.  This  practice  began  with  the  lawyers,  as  early  as 
the  reign  of  king  John ;  but  was  not  adopted  by  the  ecclesiastics  till  a  much 
later  period.  This  made  the  intermediate  writing  or  drawing  unnecessary ; 
and  it  seems  to  have  been  abandoned  about  the  reign  of  Edward  II.  But  the 
practice  of  indenting  deeds  in  the  intermediate  line,  remained  in  use  till  the 
close  of  the  14th  century ;  it  then  seems  to  have  declined  :  yet  the  practice  of 
cutting  a  waving  or  undulating  line  at  the  top  of  the  parchment,  on  which 
every  deed  that  is  not  a  deed  poll  is  written,  has  ever  since  continued.  If  the 
deed  contains  more  than  one  skin  of  parchment,  only  the  first  skin  of  parch- 
ment is  indented.  Foreign  diplomatists  contend,  that  when  the  parchment  on 
which  a  deed  is  written,  is  cut  through  the  intermediate  word  or  figure  in  a 
straight  line,  it  is  properly  called  Chirograplmm ;  that  when  it  is  cut  through 
the  intermediate  word  or  figui-e  in  a  waving  line,  it  is  properly  called  Charta 
wuhdatoria;  and  that  it  is  then  only  properly  called  GJvarta  indenta,ov 
-indentura,  when  it  is  cut  through  the  intermediate  word  or  figure  in  a  waving 
line,  and  that  waving  line  is  indented  or  notched  in  the  manner  I  have  men- 
tioned. But  with  us,  every  deed,  the  top  of  which  is  cut  in  the  undulating  or 
waving  manner  I  have  mentioned,  is  called  an  indenture.  See  Mr.  Madox's 
Preface  to  his  Formulare,  and  the  Nouveau  Traite  du  Diplomatique,  vol.  1.  351. 
—[Note  138.] 

(2)  This  was  called  charta  de  una  parte.  Some  deeds  must  be  indented  to 
be  valid  for  the  purposes  for  which  they  are  used,  as  bargains  and  sales  by  the 
Stat.  27  H.  8.  c.  16.  leases  by  persons  seised  in  tail  in  right  of  their  wives,  or 
ecclesiastical  persons,  by  32  H.  8.  c.  28.  a  bargain  and  sale  of  a  bankrupt's 
estate  by  the  13  El.  c.  7 ;  and  see  43  El.  c.  18. — [Note  139.] 

(3)  When  the  several  parts  of  an  indenture  are  interchangeably  executed  by 
the  several  parties,  that  part  or  copy  which  is  executed  by  the  grantor  is  usually 
called  the  original,  and  the  rest  are  called  counterparts ;  though  of  late  it  is 
most  frequent  for  all  the  parties  to  execute  every  part,  which  renders  them  all 
originals.     2  Bla.  Com.  ch.  20.  s.  1.— [Note  140.] 


229.  a.  229.  b.]        Of  Estates      L.  3.  C.  5.  Sect.  371. 

and  there  be  no  words  of  indenture  in  the  deed,  yet  it  is  an  in- 
(1  Rep.  173.  b.)  denture  in  law ;  for  it  may  be  an  indenture  without  words,  but 
not  by  words  without  indenting. 

(Ant.35.b.  36.a.)       "  Jn  deeds  indented."     And  here  it  is  to  be  understood,  that 

4*K  2!'Fines'^'''  ^*'  ^"S^*  ^^  ^^  ^^^  parchment  or  in  paper.     For  if  a  writing  be 

116*.  '  '  made  upon  a  peece  of  wood,  or  upon  a  peece  of  linen,  or  in  the 

4  E.  2.  Ley,  68.  barke  of  a  tree,  or  on  a  stone,  or  the  like,  &c.  and  the  same  be 

27^i  ^6  ^*'*'  ^'  s^^^'2^  o'*  delivered,  yet  it  is  no  deed,  for  a  deed  must  be  written 

F.  N.  B.  122. 1,  either  in  parchment  or  paper,  as  before  is  said,  for  the  writing 

(2  Roll.  Abr.  upon  these  is  least  subject  to  altei-ation  or  corruption. 

^^  If  the  indenture  he  bipartite,  or  tripartite,  or  quadripartite ^ 
&c."  Bipartite  is,  when  there  be  two  parts  and  two  parties  to 
the  deed.  Tripartite,  when  there  are  three  parts  and  three 
parties;  and  so  of  quadripartite,  quinquepartite,  &c." 

"  And  of  a  deed  poll."  A  deed  poll  is  that  which  is  plaine 
without  any  indenting,  so  called  because  it  is  cut  even,  or  polled. 
Every  deed  that  is  pleaded  shall  be  intended  to  be  a  deed  poll, 
unlesse  it  be  alleaged  to  be  indented. 

38  H.  6.  24,  25.        ^^  All  the  parts  of  tlie  indenture  are  but  one  deed  in  law."    If 
35^^6^'U        '  ^  ^^^  ^y  indented  make  a  gift  in  taile,  and  the  donee 

9  E.  3.  18.'  dyeth  without  issue,  that  part  of  the  indenture  which  belonged 

9  E.  4. 18.  to  the  donee  doth  now  belong  to  the  donor,  for  both  parts  doe 

PI.  Com.  134.       make  but  one  deed  in  law. 

"And  every  ptart  of  the  indenture  is  of  as  great  force,  &c."  This 
is  manifest  of  it  selfe,  and  is  proved  by  the  bookes  aforesaid. 

It  is  to  be  observed,  that  if  the  feoffor,  donor,  or  lessor  scale 
the  part  of  the  indenture  belonging  to  the  feoffee,  &c.  the  in- 
denture is  good,  albeit  the  feoffee  never  sealeth  the  counterpart 
belonging  to  the  feoffor,  &e. 

Insect.  371.  [^b.^'] 

AND  the  making  of  an  indenture  is  in  two  manners.    One  is  to  make 
them  in  the  third  person.    Another  is  to  make  them  in  the  first  per- 
son.    The  making  in  the  third  person  is  in  this  forme. 

This  indenture  made  between  M.  of  P.  of  the  one  part,  and  V.  of  D. 
of  the  other  part,  Avitnesseth,  that  the  said  R.  of  P.  hath  granted,  and 
by  this  present  charter  indented  confirmed  to  the  aforesaid  V.  of  D. 
such  land,  &c.  To  have  and  to  hold,*  &c.  upon  condition,t  &c.  In 
"witnesse  whereof  the  parties  aforesaid^  to  these  present  interchange- 
ably have  put  their  seales.  Or  thus  :  In  witnesse  whereof  to  the  one 
part  of  this  indenture  remaining  with  the  said  V.  of  D.  the  said  H.  of 
P.  hath  put  his  scale,  and  to  the  other  part  of  the  same  indenture 
remaining  with  the  said  P.  of  P.  the  said  V.  of  P.  hath  put  his  scale. 
Dated,  &c. 

Such 

*  &c.  not  in  L.  and  M.  or  Rob.  J  to  these  presents,  not  in   L.   and 

f  &c.  not  in  L.  and  M.  or  Roh.  M.  or  Roh. 


L.  3.  C.  5.  Sect.  372.     upon  Condition.      [229.  h.  230.  a. 

Such  an  indenture  is  called  an  indenture  made  in  the  third  person, 
because  the  verbes,  ^c.  are  in  the  third  i^erson.  And  this  forme  of  inden- 
tures is  the  most  sure  making,  because  it  is  most  commo7ily  used,  ^c. 

"   A  ND  the  mahing  of  an  indenture  is  in  two  manners,  &c."  9  E.  3. 18. 

■^  Here  is  another  of  our  author's  perfect  divisions.  ^  In  this  Jf^'i;  ^J,^",^^, 
and  the  next  section  following  Littleton  doth  illustrate  his  mean- 
ing, by  setting  downe  formes  and  examples  which  do  effectually 
teach. 

In  these  two  formes  there  are  to  be  observed  (amongst  other) 
three  generall  parts  of  the  same,  viz.  the  premises,  the  hahendum,  Vide  40  E.  3.  2. 
and  the  in  ctijus  ret  tpMimonium.    But  hereof  hath  been  spoken  J^H^  ^-^l^-  ^  ^^ 
at  large,  Sect.  1.  4.  <fc40.;  ior  Littleton  speaketh  not  here  of  ub! 2.*'fol.  4  &  5.' 
the  deliverie,  but  onely  of  the  context  or  words  of  the  deed.         Guddard's  case. 

(Ant.  6.  a.) 

"  Becaxise  it  is  most  commonly  used."     Here  it  appeareth  that  17  Eliz. 
which  is  most  commonly  used  in  conveyances  is  the  surest  way.  ^^^'l^"^' 
A  communi  ohservantid  non  est  recedendum,  &  mlnime  mutanda  j^  ^  q  jg, 
sunt  qua;  certam  hahuerunt  inter pretationem.     Magister  rerum  Bab.  12  H.4.12. 
usus.    It  is  provided  by  the  statute  of  38  E.  3.  cap.  4.  30  Ass.  31. 

t 23 0.1  that  all  penal  bonds  in  the  third  B@^  person  be  void  and 
a.  J  holden  for  none,  wherein  some  of  our  bookes  \_d']  seem  [d]  40  E.  3. 1. 
to  differ,  but  they  being  rightly  understood,  there  is  no  2  H.  4.  lO. 
'difference  at  all.  For  the  statute  is  to  be  intended  of  bonds  taken 
in  other  courts  out  of  the  realme,  and  so  it  appeareth  by  the  pre- 
amble of  that  act.  And  it  was  principally  intended  of  the  courts 
of  Rome,  and  so  it  appeareth  by  justice  Hanhford,  in  2  H.  4.  in 
which  courts  bonds  were  taken  in  the  third  person,  so  as  such 
bonds  made  out  of  the  realm  are  void ;  but  other  bonds  in  the 
third  person  are  resolved  to  be  good,  as  well  as  indentures  in  the 
third  person,  by  the  opinion  of  the  whole  court  in  8  E.  4.  (1) 


Sect.  372. 

THE  mahing  of  an  indenture  in  the  first  person  is  as  in  this  forme 
(Le  feasance  de  indenture  en  le  primer  person  est  *  come  en  tiel 
forme).  To  all  Christian  people  to  whom  these  presents  indented  shall 
come,  A.  of  B.  sends  greeting  in  our  Lord  God  everlasting.^  Know 
yee  mee  to  have  given,  granted,  and  by  this  my  present  deed  indented 
confirmed  to  C.  of  D.  such  land,  &c.  Or  thus :  Know  all  men  present 
and  to  come,  that  I  A.  of  B.  have  given,  granted,  and  by  this  my  pre- 
sent deed  indented,  confirmed  to  0.  of  D.  such  land,  &c.  To  have  and 
to  hold  {habendum^  Sj-  tenendum),  &c.  upon  condition  following,  &c. 
In  witnesse  whereof,  as  well  I  the  said  A.  of  B.  as  the  aforesaid  C.  of  B. 
to  these  indentures  have  interchangeably  put  our  scales.  Or  thus:  In 
witnesse  whereof  I  the  aforesaid  A.  to  the  one  part  of  this  indenture 

have 

*come  not  in  L.  and  M.  or  Roh.      f  et  tenendum,  not  in  L.  and  M.  or  Rob, 


(1)  See  Mr.  Reeves's  accurate  and  learned  History  of  the  English  Law,  vol. 
2.  p.  67. 


230.  a.  230.  b.]  Of  Estates      L.  3.  C.  5.  Sect.  373. 

have  put  my  seale  {in  cujus  rei  testimonium  %  ego  prsefatus  K.  uni  parti 
hit  jus  indenturae  sigillmn  meum  apposui),  and  to  the  other  part  of  the 
same  indenture  the  said  O.  of  D.  hath  put  his  seale,  &;c. 

TTERE  Littleton  sets  down  three  formes  of  deeds  indented  in 
J-L  the  first  person,  hrevis  via  per  exempla,  longa  per  proacepta. 
It  is  requisite  for  everie  student  to  get  presidents  and  approved 
Vide  Sect.  371.  formes  not  onely  of  deeds  according  to  the  example  of  Littleton, 
but  of  fines,  and  other  conveyances,  and  assurances,  and  spe- 
cially of  good  and  perfect  pleading,  and  of  the  right  entries,  and 
formes  of  judgements,  which  will  stand  him  in  great  stead,  both 
while  he  studies,  and  after  when  he  shall  give  counsell.  It  is  a 
safe  thing  to  follow  approved  presidents,  for  nihil  simil  inventum 
est,  &  per/ectum. 

Sect.  373. 

4^1^  it  seemcth  that  such  indenture  tvhich  is  made  in  the  first  person 
(tiel  indenture  ||  que  est  fait  en  le  primer  person)  is  as 
good  in  law,  as  the  ]^^^  indenture  made  in  the  third  person,  ("QSO."] 
when  both  parties  have  put  to  this  their  seales  ;  for  if  in  the  \_  \>.  \ 
indenture  made  in  the  third  person,  or  in  the  first  person, 
mention  he  made  (car*  si  en  I'indenture  fait  en  le  tierce  person,  ou  en 
le  primer  person,  f  mention  soit  fait)  that  the  grantor  onely  hath  put 
his  seale,  and  not  the  grantee,  then  is  the  indeiiture  onely  the  deed  of 
the  grantor.  But  ivhere  mention  is  made  that  the  grantee  hath  put  his 
seale  to  the  indenture,  ^c.  (Mes  I'our  mention  est  fait  que  le  grauntee 
ad  mis  §  son  seale  a  I'indenture,  &c.)  then  is  the  indenture  as  well  the 
deed  of  the  g^'antee  as  the  deed  of  the  grantor.  So  is  it  the  deed  of 
them  both,  and  also  each  part  of  the  indenture  is  the  deed  of  both  par- 
ties in  this  case. 

(2  Inst.  673.  TTERE  is  to  be  observed,  that  albeit  the  words  in  this  inden- 
Ant.  52.  b.  J- J-  ture  be  onely  the  words  of  the  feoifor,  yet  if  the  feofiee  put 

2  Roll.  Abr.  22.)  ijjg  geale  to  the  one  part  of  the  indenture,  it  is  the  deed  of 
them  both.  And  in  this  speciall  case  to  make  it  the  deed  of  the 
feofi'ee,  it  appeareth  by  Littleton,  that  mention  must  be  made  in 
the  deed,  that  hee  hath  put  to  his  seale,  for  that  he  is  no  way 
made  partio  to  make  it,  being  made  in  the  first  person,  but  onely 
by  the  clause  of  putting  his  seale  thereunto.  Otherwise  it  is  of 
a  deed  indented  in  the  third  person  as  before,  it  appeareth,  for 
there  hee  is  made  partie  to  the  deed  in  the  beginning.  And  Lit- 
tleto7i's  rule  is  true,  that  every  part  of  an  indenture  is  the  dede 
of  both  parties;  for,  as  it  hath  beene  said,  both  parts  make  but 
one  deed  in  law  in  that  case. 

I  ego  prafatas  A.  not  in  L.  and  M.         *  si  7iot  in  L.  and  M.  or  Roh. 

or  Roh.  f  si  added  in  L.  and  M.  and  Roh. 

II  que  est,   not   in   L.   and   M.   or         §  non  seale  not  in  L.  and  M.  or 
Roh.  Roh. 


Sect. 


L.  3.  C.  5.  Sect.  374.    upon  Condition.       [230.  b.  231.  a. 


Sect.  374. 


A  LSO  if  an  estate  bee  made  by  indenture  to  one  for  terme  of  his  life, 
the  remainderman  to  another  in  fee  ufon  a  certaine  condition,  ^e.  and 
if  the  tenant  for  life  have  put  his  seale  to  the  part  of  the  indenture,  arid 
after  dieth,  and  he  in  the  remainder  entreth  into  the  land  by  force  of  his 
remainder,  <f  c.  in  this  case  he  is  tied  to  performe  all  the  conditions  com- 
prised in  the  indenture,as  the  tenant  for  life  ought  to  have  done  in  his  life 
time,  and  yet  he  in  the  remainder  never  sealed  any  part  of  the  indenture. 
But  the  cause  is,  for  that  inasmuch  as  he  entred  and  agreed  to  have  the 
lands  by  force  of  the  indenture,  hee  is  bound  to  performe  the  conditions 
within  the  same  indenture,  if  he  will  have  the  land,  ^c. 

"  TJPON  a  certaine  condition,  &c."     Here  by  this   (&c.)  is  (1  Roll.  Abr. 

implied,  that  the  condition  in  this  case  doth  extend  both     -2.4/4.) 
to  ''^e  estate  for  life,  and  to  the  remainderman,  but  by  speciall  limi- 
tation it  may  extend  to  any  one  of  them,  and  not  to  the  other. 
And  albeit  he  in  the  remainder  be  no  party  to  the  indenture  (the  (lo  R  ep.  Doct. 
^parties  thereunto  only  being  the  lessor  and  the  tenant  for  life)  Ball's  case,  cited 
yet  when  he  in  the  remainder  entreth  and  agreeth  to  have  the  cas^^^  ^^^  ^^  * 
lands  by  force  of  the  (1)  indenture,  he  is  bound  to  per- 

t331.~|  forme  the  conditions  contained  in  the  0^   indenture.  (2  Cro.  242. 
a.     J  And  here  is  also  a  diversitie  to  be  understood,  that  any  ^^^-  ^^^-^ 
estranger  to  the  indenture  may  take  by  way  of  re-  (2  Inst.  673. 
mainder,  but  he  cannot  in  this  case  take  any  present  estate  in  (2  Roll.  Abr. 
possession  because  he  is  an  estranger  to  the  deed  (1)*.  ^^'^ 

If  A.  by  deed  indented  between  him  and  B.  letteth  lands  to  50  E.  3.  22. 
B.  for  his  life,  the  remainder  to  C.  in  fee,  reserving  a  rent,  tenant  ^^  ^:  ^f:h 
for  life  dieth,  he  in  the  remainder  entreth  into  the  lands,  he  shal  (5  j^gp,"  iq^j 
be  bound  to  pay  the  rent,  for  the  cause  and  reason  before  yeelded  38  E.  3.  8.  a. 
by  Littleton.     An  indenture  of  lease  is  engrossed  betweene  A.  of  ^?|-  ^:^^  ^' 
the  one  part,  and  D.  and  R.  of  the  other  part,  which  purporteth  n  12. 
a  demise  for  yeares  by  A.  to  D.  and  R.     A.  sealeth  and  deli- 
vereth  the  indenture  to  D.  and  D.  sealeth  a  counterpart  to  A. 
but  E.  did  not  seale  or  deliver  it.     And  by  the  same  inden- 
ture 


(1)  So  where  three  were  enfeoflPed  by  deed,  and  there  were  several  covenants 
in  the  deed  on  the  part  of  the  feoifees,  and  only  two  of  the  feoffees  sealed  the 
deed,  the  third  entered  and  agreed  to  the  estate  conveyed  by  the  deed,  he  was 
bound  in  a  writ  of  covenant  by  the  sealing  of  his  companions.  2  Roll.  Rep.  63. 
— In  38  Ed.  3.  p.  9.  it  is  said,  that  if  land  is  leased  to  two  for  years,  and  only 
one  puts  his  seal,  but  the  other  agrees  to  the  lease,  and  enters  and  takes  the 
profits  with  him,  he  shall  be  charged  to  pay  the  rent,  though  he  has  not  put 
his  seal  to  the  deed  ;  but  if  there  is  a  condition  comprised  in  the  deed  which 
is  not  parcel  of  the  lease,  but  a  condition  in  grosse,  if  he  does  not  put  his  seal 
to  the  deed,  though  he  is  party  to  the  lease,  he  is  not  party  to  the  condition, 
—[Note  141.] 

(1)  *  In  Salter  v.  Kidgly,  Carth.  76.  lord  Chief  justice  Holt  held,  that  a 
party  to  a  deed  cannot  covenant  with  one  •who  is  no  party  to  it ; — but  that 
one  who  is  no  party  to  a  deed  may  covenant  with  one  who  is  a  party,  and 
oblige  himself  by  sealing  of  the  deed. — [Note  142.] 


231.  a.  231. 1).]         Of  Estates       L.  3.  C.  5.  Sect.  375. 

ture  it  is  mentioned,  that  D.  and  7?.  did  grant  to  be  bound  to  the 
plaintife  in  20  pound  in  case  that  certaine  conditions  comprised 
in  the  indenture  were  not  performed.  And  for  this  20  pound 
A.  brought  an  action  against  D.  onely,  and  shewed  forth  the 
indenture.  The  defendant  pleaded,  that  it  is  proved  by  the 
indenture  that  the  demise  by  indenture  was  made  to  D.  and  R. 
which  R.  is  in  full  life,  and  not  named  in  the  writ,  judgment 
of  the  writ.  The  plaintife  replyed,  that  R.  did  never  seale  and 
deliver  the  indenture,  and  so  his  writ  was  good  against  D.  sole. 
And  there  the  counsell  of  the  plaintife  took  a  diversitie  betweene 
a  rent  reserved  which  is  parcell  of  the  lease,  and  the  land  charged 
therewith,  and  a  summe  in  grosse,  as  here  the  twenty  pound  is ; 
for  as  to  the  rent  they  agreed  that  by  the  agreement  of  R.  to 
the  lease,  he  was  bound  to  pay  it,  but  for  the  20  pound  that  is 
a  summe  in  grosse,  and  collateral  to  the  lease,  and  not  annexed 
to  the  land,  and  groweth  due  only  by  the  deed,  and  therefore  R. 
said  hee  was  not  chargeable  therewith,  for  that  he  had  not  sealed 
and  delivered  the  deed.  But  inasmuch  as  he  had  agreed  to  the 
lease  which  was  made  by  indenture,  he  was  chargeable  by  the 
indenture  for  the  same  summe  in  grosse  ;  and  for  that  R.  was 
not  named  in  the  writ,  it  was  adjudged  that  the  writ  did  abate. 

"  To  have  the  lands,  &c."  Here  is  implyed  an  ancient 
maxime  of  the  law,  viz.  Qui  sentit  commodum  sentire  debet  et 
onus,  et  transit  terra  cum  onere. 


'^^  Sect.  375. 

A  LSO  if  a  feoffment  hee  made  by  deed  poll  upon  condition,  *  and 
for  that  the  condition  is  not  performed  the  feoffor  entreth  and  getteth 
the  possession  of  the  deed  poll,  if  the  feoffee  brings  an  action  for  this  entrie 
against  the  feoffor,  it  hath  beene  a  question  if  the  feoffor  may  pfleadthe 
condition  by  the  said  deed  poll  against  the  feoffee.  And  some 
have  said  Jg^°"  he  cannot,  inasmuch  as  itseemesunto  them  that  a  r231.~j 
deed  'poll,  and  tlie propertie  of  the  same  deed  belongeth  to  him  to\_  b.  J 
whom  the  deed  is  made,  and  not  to  him  which  maketh  the  deed. 
And  inasmuch  as  such  a  deed  doth  not  appe^iaineto  the  feoffor,  itseemes 
unto  them  that  he  cannot  p)lead  it.  f  And  others  have  said  the  contrary, 
and  have  shelved  divers  reasons.  One  is,  If  the  case  ivere  such,  that  in 
an  action  betweene  them,  if  the  feoffee  pleade  the  same  deed,  andshetv  it 
to  the  court  (si  le  feoffee  pleder  mesme  le  fait,  et  monstre  .j.  est  J  al 
court),  in  this  case  insomuch  as  the  deed  is  in  court,  the  feoffor  may  shew 
to  the  court  how  in  the  deed  there  are  divers  conditions  to  be  performed  of 
the  part  of  the  feoffee,  ^c.  a?id  because  they  were  not  peyformed  he  entred, 
^-c.  (le  feoffor  poit  monstrer  al  court  coment  en  le  fait  sent  divers  con- 
ditions d'estre  performes  ||  de  le  part  le  feoffee,  &c.  et  pur  ceo  queilsne 
fueront  performes,  il  enter,  &;c.)  and  to  this  he  shall  be  received.    By  the 

same 


*  &c.  added  in  L.  and  M.  and  Roh.         1|  de  le  part  le  feoffee,  &c.  et  pur 

I  &c.  added  in  L.  and  M.  ceo  que  ils  ne  fueront  performes,  not 

\.  ceo,  in  L.  and  M.  and  Roh.  in  L.  and  M.  or  Roh. 
j  est  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  5.  Sect.  376.    upon  Condition.        [231 .  b. 232.  a. 

same  reason  when  the  feoffor  hath  the  deed  in  hand^  and  sheiv  this  to 
the  court,  he  shall  well  he  received  to  pleade  it  (il  serra  §  bien  resceive 
de  ceo  pleder),  ^c.  and  namely  when  the  feoffor  is  privy  to  the  fait, /or 
hee  must  he  privie  to  the  deed  when  he  makes  the  deed  (car  ^  covient 
estre  privie  al  fait  quant  il  fist  le  fait),  ^c. 

HERE  the  latter  opinion  is  cleerc  law  at  this  day,  and  is  Lit-  [«]  Vic.  sect. 
tleton's  owne  opinion  [a],  as  before  hath  beene  observed.       l^^.  302.  340. 

"Have  shewed  divers  reasons." 

Felix  qui  potuit  rerum  cognoscere  causas. 
Et  ratio  melior  semper  praevalet. 

"Insomuch  as  the  deed  is  in  court,  &c."     And  herewith  doe  24  E.  3.  73. 
agree  [i]  many  authorities  in  law.     [c]  And  if  the  deed  remaine  ^5  E.  3.  Mon- 
in  one  court,  it  may  be  pleaded  in  another  court,  without  shew-  1^^°^    ^^  ^^  ^' 
ing  forth  ^  quia  lex  non  cogit  ad  impossihilia.  \h]  40  Ass.  34. 

lib.  5.  75.  b. 
Wymark's  case.  [c]  12  H.  4.  8.     42  E.  3.  27.     AVymark's  case,  ubi  supra. 

38  H.  6.  2.     41  Ass.  29.     12  U.  4.  8.     7  H.  4.  39.     11  H.  4.  73.     45  E.  3.   11. 
F.  N.  B.  243. 

"  Of  the  part  of  the  feoffee,  tCr."  Here  also  is  implyed  if  the 
condition  be  to  be  performed  on  the  part  of  the  feoffor  or  by  a 
stranger;  and  it  is  to  be  understood  that  when  a  deed  is  shewed 
forth  to  the  court,  the  deed  shall  remaine  in  court  all  that  tearm 
in  the  custody  of  the  custos  brevium,  but  at  the  end  of  the  tearme 
(if  the  deed  be  not  denied)  then  the  law  adjudgeth  the  deed  in 
the  custody  of  the  party  to  whom  it  belongeth,  for  a  man's  evi- 
dences are  as  it  were  the  sinewes  of  his  land.  But  if  the  deed  (5  Rep.  75,  76.) 
be  denied,  then  the  deed  in  judgment  of  law  remaineth  in  court 
untill  the  plea  be  determined  (1).  The  residue  of  this  section 
needeth  no  explication. 


["f-] 


«@^  Sect.  376. 


A  LSO  if  two  m£7i  doe  a  trespasse  to  another,  ivho  releases  to  one  of 
them  hy  his  deed  all  actio7is  personalis,  and  notivithstanding  sueth 
an  action  of  trespasse  against  the  other,  the  defendant  may  wel  shew 
.that  the  the  trespasse  was  done  hy  him,  and  hy  another  his  felloio,  and 
that  the  plaintife  hy  his  deed  {tvhich  he  sheiveth  forth)  released  to  his 
fellow  all  actions  personals  (et  que  le  plaintife  per  *  son  fait  que  il 
monstre  avant  relessa  a  son  companion  touts  actions  personals),  and 
demand  the  judgement,  ^c.  and  yet  such  deed  helongeth  to  his  fellozo 

and 

§  de  ceo  added,  in  L.  and  M.  *  son — le,  L.  and  M.  and  Roh. 

^[  il  added  in  L.  and  M.  and  Roll. 


(1)  But  after,  though  the  jury  find  the  deed  not  to  be  the  deed  of  the  party, 
yet  will  not  the  court  on  motion  detain  the  same,  but  will  order  it  to  be  de- 
livered to  the  party  that  brought  it  into  court.  2  Sid.  131.  Vid,  Salk.  215. 
Note  to  the  llth  edition. — [Note  143.] 


232.  a.]  Of  Estates    L.  3.  C.  5,  Sect.  376. 

and  not  to  him.  But  because  hee  may  have  advantage  hy  the  deed,  if 
he  will  shew  the  deed  to  the  court,  he  may  well  plead  this  (raes  pur  ceo 
que  il  poit  aver  advantage  per  le  fait,  si  voit  monstrer  le  fait  al  court, 
il  poit  t  ceo  bien  pleder),  ^c.  By  the  same  reason  may  the  feoffor  in 
the  other  case,  when  he  ought  to  have  advantage  hy  the  condition  com- 
prised within  the  deed  poll  (per  inesme  le  reason  |  poit  le  feoffor  en 
Tauter  cas,  quant  §  il  doit  aver  advantage  per  le  condition  ||  compris 
deins  le  fait  poll^). 

27  E.  3. 83.  "  TF  t.ico  men  doe  a  trespasse  to  another,  &c."     Here  by  this 

13  E.  4.  2.  section  it  is  to  bee  understood,  that  when  divers  doe  a  tres- 

Ia  f  t  ^2  passe,  the  same  is  joynt  or  severall  at  the  will  of  him  to  whom 

22  E.  4.  7. '  tbe  wrong  is  done,  yet  if  he  release  to  one  of  them,  all  are  dis- 
s  H.  6. 15.  charged,  because  his  own  deed  shall  be  taken  most  strongly 

91  H  fi  *^*  against  himselfe,  but  otherwise  it  is  in  case  of  appeale  of  death, 
Arbitreinent  41.  «^c.     As  if  two  men  bee  joyntly  and  severally  bounden  in  an 

2  R.  3.  9.  a.  obligation,  if  the  obligee  release  to  one  of  them,  both  are  dis- 
1"^  H.  8. 10.  charged;  and  seeing  the  trespassers  are  parties  and  privies  in 
tranffealfalt.2i'  wrong,  the  oue  shall  not  plead  a  release  to  the  other  without 

3  H.  6. 18.  26.     shewing  of  it  forth,  albeit  the  deede  appertaine  to  the  other  (1). 

(11  Rep.  5. 

2  Roll.  Abr.  412.    Hob.  66.     2  Sid.  41,     Ant  125.  b.) 

If 

f  pur  added  in  L.  and  M.  \\  compris    yiot   in   L.    and  M.    or 

j  poit  le  feoffor  not  in  L.  and  31.  Roll, 

or  Roh.  ^  &c.  addded  in  L.  and  M.  and  Roh. 
§  le  feoffor,  in  L.  and  M.  and  Roh 


(1)  26  H.  6.  T.  Barre,  37.  Ohligeemadean  acquittance  to  one  obligor,  lohich 
teas  dated  before  the  obligation,  but  teas  delivered  afterwards  :  the  other  obligor 
pleads  this  in  bar,  and  it  was  adjudged  a  good  plea  in  bar.  Nota,  each  was 
bound  in  die  entirety,  therefore  it  was  Joint  and  several.  34  IT.  6.  So  in  the 
case  of  the  king,  if  he  releases  to  one  of  the  obligors,  the  other  shall  take  advantage. 
5  Rep.  56,  contra. — And  as  a  release  in  deed  to  one  obligor  discharges  the  other, 
so  of  areleasein  law,  as  8  Rep.  136.  Needham's  case.  A  woman  obligee  marries 
Uie  obligor,  that  is  another  sort  of  discharge,  264.  b. — But  17  Car.  B.  R.  tivo 
tcere  bound  Jointly  and  severally.  Tlie  plaintife  sued  both,  and  afterwards  entered 
a  retraxit  against  one;  whether  that  discharged  the  other  icas  the  question. 
Berkley  said  it  was,  for  it  amounts  to  a  release  inlaw,  as  the  plaintife  confesses 
thereby  that  he  had  not  cause  of  action,  and  thereforehe  cannot  have  Judgment, 
as  in  Jlickmot's  case,  9  Rep.  and  retraxit  is  a  bar  to  an  action  ;  and  the  plaintiff 
by  his  oicn  act  has  altered  the  deed  from  Joint  to  several,  and  therefore  the  other 
shall  have  advantage  of  it.  Co.  Inst,  contra  ;  for  a  retraxit  is  only  in  the  nature 
of  an  estoppel ;  and  therefore  the  other  shall  not  have  advantage  ;  neither  is  it  a 
release,  though  it  be  in  the  nature  of  a  release  ;  and  if  the  obligee  sues  both,  and 
then  covenants  with  one  not  to  sue  further,  that  is  in  the  nature  of  a  release,  but 
the  other  shall  not  take  advantage  of  it;  and  in  21  H.  6.  is  said,  that  there 
must  be  an  actual  release  to  one  obligor  to  discharge  the  other.  See  March. 
Rep.  165. — Fas.  18  Car.  Ilannon  v.  Roll.  The  obligee  releases  to  one  obligor  ; 
the  other,  in  consideration  of  the  forbearance,  undertakes  to  pay,  and  in  an  action 
upon  the  case  the  matter  was  found  specially ;  and  Rolls  argued,  that  the  debt 
ioas  not  absohitely  discharged,  but  only  sub  modo,  viz,  if  the  other  can  have  the 
release  to  plead,  and  because  the  forbearance  was  a  good  consideration.  But  the 
court  teas  of  opinion,  that  the  debt  was  absolutely  discharged,  and^  therefore  the 
comderation  xcas  insufficient.  See  Eobart,  Rep.  70.  Parker  v.  sir  John  Law- 
rence. 


L.  3.  C.  5.  Sect.  377.    upon  Condition.     [232.  a.  232.  b. 

If  an  action  of  debt  upon  an  obligation  bee  brought  against  an  13  ^- 2^^^*" 
heire,  be  may  plcade  in  barre  a  release  made  by  the  obligee  to  the  ^i^l\i^J^\2. 
executors.     But  albeit  the  deed  belong  to  another,  yet  must  he  (pio.  439.  b. 

shew  it  forth,  for  both  of  them  are  privie  to  the  testator.  p.ver,  344. 

'  6  Rep.  7. 

.      .,  .  . ,        .  10  Rep.  93.  b.) 
"  Bj/  the  same  7-eason."      Uhi  eadem  ratio,  thi  idem  jus. 


Sect.  377. 

A  LSO,  if  the  feoffee  granteth  the  deed  to  the  feoffor,  such  grant  shall 
bee  good,  and  then  the  deed  and  the  propertie  thereof  belong eth  to 
thefeofor,  S^c.  And  when  the  feoffor  hath  the  deed  in  hand,  and  is 
pleadt'd  to  the  court,  (Et  quant  le  feoffor  ad  le  fait  en  poigne,  et  *  est 
plead  al  court),  it  shall  he  rather  intended,  that  he  eommeth  to  the  deed  by 
laufull  meanes,  then  by  a  tvrongfull  mean.  And  so  it  seemeth  unto  them^ 
that  the  feoffor  may  wel  plead  such  deed  poll  which  compriseth  the  con- 
dition, J-c.  if  he  hath  the  same  in  hand,  f  Ideo  semper  quaere  de  dubiis, 
quia  per  rationes  pervenitur  ad  legitimam  rationem,  &c. 

"  rr  HE  propertie  of  the  deed  helongeth  to  the  feoffor."    Hereby  (l  Rep.  1.) 
'  -^  it  appeareth  that  a  man  may  give  or  grant  his  deed  to 

r  2  3  3 . 1  another,  and  such  a  grant  by  paroll  is  good.    J3@°"  And  (^Ant.  214.  a^.^ 
L     b.     J   it  is  also  implied,  that  if  a  man  hath  an  obligation,  ^  rJil  Abr.  45, 

though  he  cannot  grant  the  thing  in  action,  yet  hee  46.48.    1  Sid. 
may  give  or  grant  the  deed,  viz.  the  parchment  and  waxe  to  212,  213.) 
another,  who  may  cancell  and  use  the  same  at  his  pleasure  (1). 

''It 


*  est — ceo,  in  L.  and  M.  and  Roll.         f  &c.  added  in  L.  and  M.  and  Roh. 


rence.  In  trespass  against  three,  they  divided  on  the  pleading.  Judgment  against 
one.  Then  he  entered  a  noli  prosequi  against  the  two  others;  it  ivas  held  to  be 
no  discharge  to  him  against  v.-hom  Judgment  icas  had  ;  for  as  to  him,  the  action 
was  determined  hij  the  judgment,  and  the  others  are  divided  from  him,  and  not 
subject  to  the  damages  recovered  against  him  ;  but  a  noli  prosequi,  or  non-suit 
before  judgment  against  one,  woxdd  discharge  all.    Lord  Nott.  MS. — [Note  144.] 

(1)  It  is  to  be  observed,  that  the  king  was  always  an  exception  to  this  rule ; 
for  he  might  always  cither  grant  or  receive  a  chose  in  action  by  assignment. — 
The  reason  why,  by  the  strict  rules  of  the  common  law,  Si.  chose  in  action  cannot 
be  assigned  or  granted  over,  was,  that  it  was  thought  to  be  a  great  encourage- 
ment to  litigiousness  if  a  man  were  allowed  to  make  over  to  a  stranger  his  right 
of  going  to  law.  But  this  nicety  is  now  disregarded :  though,  in  compliance 
with  the  ancient  principle,  the  form  of  assigning  a  chose  in  action  is  in  the 
nature  of  a  declaration  of  trust,  and  an  agreement  to  permit  the  assignee  to 
make  use  of  the  name  of  the  assignor,  in  order  to  recover  the  possession.  _  And 
therefore,  when,  in  common  acceptation,  a  debt  or  bond  is  said  to  be  assigned 
over,  it  must  still  be  sued  in  the  original  creditor's  name ;  the  person  to  whom 
it  is  transferred  being  rather  an  attorney  than  an  assignee  :  and  our  courts  of 
equity,  considering  that  in  a  commercial  country  almost  all  personal  property 
must  necessarily  lie  in  contract,  will  protect  the  assignment  of  a  c/tose  in  action, 
as  much  as  the  law  will  that  of  a  c7(o.sr;  in  p)osscssion.  Dyer,  30.  Br.  Ab.  tit. 
Chose  in  Action.     3  P.  W.  199.     2  Bla.  Com.  Ch.  30.— [Note  145.] 

Vol.  II.— 16 


232.  b.]  Of  Estates         L.  3.  C.  5.  Sect.  378. 

''It  shall  be  rather  intended,  that  lie  commeth  to  the  deed  hy 
laiofull  meanes,  then  hy  a  wrong  full  mean."  Omnia  presumun- 
tur  legitime  facta,  donee  prohetur  in  contrarium.  Injuria  iwit 
prcesumitur. 

"  Quaere  de  duhiis."     There  be  three  kinds  of  unhappie  men. 

1.  Quiscit  &non  docet,  Hee  that  hath  knowledge  and  teacheth 
not. 

2.  Qui  docet  (Ss  nan  vivit.  He  that  teacheth,  and  liveth  not 
thereafter. 

3.  Qui  nescit,  &  non  interrogat,  He  that  knoweth  not,  and 
doth  not  enquire  to  understand.  Therefore  Littleton  saith, 
Quoere  de  duhiis. 

Infelix  cujus  nulli  sapientia  prodest. 
Infelix  qui  recta  docet,  cum  vivit  inique. 
Infelix  qui pauca  sapit  spernitque  doceri. 

"  Quia  per  rationes  pervenitur  ad  legitimam  rationem."  For 
Ratio  est  radius  diviniluminis.  And  by  reasoning  and  debating 
of  grave  learned  men  the  darknesse  of  ignorance  is  expelled,  and 
by  the  light  of  legall  reason  the  right  is  discerned,  and  thereupon 
judgment  given  according  to  law,  which  is  the  perfection  of  rea- 
son. This  is  of  Littleton  here  called  legitima  ratio,  whereunto 
no  man  can  attaine  but  by  long  studie,  often  conference,  long 
experience  and  continuall  observation. 

Certaine  it  is,  that  in  matters  of  difficultie  the  more  seriously 
tliey  are  debated  and  argued,  the  more  truely  they  are  resolved, 
and  thereby  new  inventions  justly  avoided. 

Inter  cuncta  leges,  &  percunctahere  doctos. 


Sect.  378. 

J^S TATE S  which  men  have  upon  condition  in  law,  are  such  estates, 
which  have  a  condition  hy  the  laiv  to  them  annexed,  albeit  that  it  he 
not  specified  in  loriting.  As  if  a  man  grant  hy  his  deed  to  another  the 
office  of  parkership  of  a  park,  to  have  and  occupie  the  same  office  for 
terme  of  his  life  the  estate  ivhich  he  hath  in  the  office  is  upon  condition  in 
laiv,  to  wit,  that  the  parker  shall  ivell  and  lawfully  keepe  the  parke,  and 
shall  doe  that  which  to  such  office  helongeth  to  doe,  or  otherwise  it  shall 
he  lawful  to  the  grantor  and  his  heires  to  oust  him,  and  to  grant  it  to 
another  if  he  tvill,  ^e.  And  such  condition  as  is  intended  hy  the  law  to 
he  annexed  to  any  thing,  is  as  strong  as  if  the  condition  were  put  in 
writing  (sicome  la  condition  fuissoit  mis  *  en  escript). 

"QONDITION  in  law,  &c."     Littleton  having  spoken   of 
conditions  in  deed,  now  according  to  his  owne  divi.sion 
commeth  to  speake  of  conditions  in  law. 

"  That  it  he  not  specif  ed  in  writing."   A  condition  in  law  is  that 

which 
*  ou  mustre,  added  in  L.  and  M.  and  Roh. 


L.  3.  C.  5,  Sect.  378.    upon  Condition.     [232.  b.  233.  a. 

which  the  law  intendeth  or  implyeth  without  expresse  words  in 
the  deed. 


[Q33.1      5®°°  *'  That  the  parher  shall  well  and  laxofulli/  kecpe  (Ant.  2.  a.  115.  a. 
a.     J   the  jxirke,  (que  le  parker  bien  et  loyalment  gardera  le  Cro.  Car.  59,  60. 
parke),  &cJ'     Parke,  this  should  be  written  parque  ,  J^^['  l^' 
which  IS  a  rrencli  word,  and  signmetii  that  which  we  vulgarly  Uutt.  86,87.) 
call  a  parke,  of  the  French  word  jjarquer,  to  iraparke,  to  inclose. 
It  is  called  in  Domesdai/,  Parens.     In  law  it  signifieth  a  great 
quantity  of  ground  inclosed,  privileged  for  wild  beasts  of  chase 
by  prescription,  or  by  the  king's  grant. 

The  beasts  of  parque  or  chase,  properly  extend  to  the  bucke,  (8  Rep.  136.) 
the  doe,  the  foxe,  the  marten,  the  roe,  but  in  a  common  and  (F-N.  13.  I6l.d.) 
legall  sense,  to  all  the  beasts  of  the  forrest.  There  be  both  beasts 
and  fowles  of  the  warren.     Beasts,  as  hares,  conieg,  and  roes  (5  R^p,  104   i,  j 
called  in  records  \d'\  CapreoU.  Fowles  of  two  sorts,  viz.  Terres-  [fZ]  Hill.  13.  E.  .3. 
tres  and  Aqitatiles.    Terrestres  of  two  sorts,  Silvesfres  and  Cam-  ?°''£;™  '"'^se 
jiestres:    C'ctmpes/rps,  as  partridge,  quaile,  raile,  &c.   Silvesfres,  as  (7  Rep^lD.) 
phesant,  woodcocke,  &c.      Aquati/es,  as   mallard,    heme,    &c. 
whereof  I  have  seen  in  this  record  [*]  :  Bex  concessit  Johanni  de  (*)  38  E.  3. 
Beverly  Armigero  suo  quod  ipse  cum  quilmscimque  canibus  suis  Ret. patent. 
ad  quascunque  hestias /eras  regis  in  qtiibtcscunque/orestis,parcis 
suis  qiiotiescunque  valuer  it  venari  possit,  et  quoscunque  falcones 
possit  permittere  volare  ad  quascu7ique  aves  de  warrend   in  qui- 
buscunque  ripariis,  d'c. 

It  is  resolved  [e]  by  the  justices  and  the  king's  counsell,  that  [e]  Hill  13  E.  3. 
capreoli,  id  est  roes,  non  su)it  bestise  de  foresta,  eo  quod  fug  ant  ?°'"^°^  '"''se 
alias  f eras.     Beasts  of  forrests  be  properly  hart,  hiude,  bucke, 
hare,  boare,  and  wolfe,  but  legally  all  wild  beasts  of  venery. 

A  forest  and  chase  are  not,  but  a  parke  must  be  inclosed. 
The  forrest  and  chase  doe  differ  in  offices  and  lawes  :  every  forest  Vide  Sect.  1. 
is  a  chase,  but  every  chase  is  not  a  forest.     A  subject  may  have 
a  forest  by  especiall  grant  of  the  king,  as  the  duke  of  Lancaster 
and  abbot  of  Whitbie  had. 

Oclcani  cap.  quid  regis  foresta,  saith,  Foresta  est  tuta  ferarum  Vide  Bract. 
mansio  non  quarumlibet,  .<>ed  silvestrium,  non  quibuslibet  in  locis,  fo.  231  &  316. 
sed  certis,  et  ad  hoc  idoneis ;  tmde  forestall.  mutatainO.  quasi  yilt^^h^^"  ' 
foresta,  hoc  est,  ferarum  statio.  cap.  34,  35. 

Pudzeld  or  Woodgeld  is  to  be  free  from  payment  of  money 
for  taking  wood  in  any  forest.  But  let  us  now  return  to  our 
Littleton. 

In  this  Section  Littleton  putteth  an  example  of  a  condition  in  (9  Rep.  50. 
law,  annexed  to  the  office  of  the  keeper  of  a  park,  but  this  ex-  Sid.  14.) 
ample  must  be  understood  with  a  distinction ;  for  if  the  parker 
doth  not  attend  on  the  parke  one  or  two,  &c.  dayes,  this  is  no  5  E.  4.  15.  b. 
forfeiture  of  the  office  of  parkership ;  but  if  in  his  default  any  hf^'J  ^"'.ha^' 
deere  be  killed,  and  so  a  damage  to  the  lord,  that  is  a  forfeiture  :  33!)       '    '  ' 
for  (that  it  may  be  said, once  for  all)  non-user  of  it  sclfc  without  2  II.  7. 11. 
some   speciall   damage   is  no  forfeiture   of  private   offices,  but  -^^  ^^■^-  '^^>  *'^- 
non-user   of   publique    offices   which    concern    the    adininistra-  \^^'  (;uJ]Vn?e.) 
tion  of  justice,  or  the  common  wealth,  is  of  it  selfe  a  cause 
of  forfeiture. 

"  To  oust  him  if  he  will,  &c.^'  Littleton  here  spcaketh  of 
an   ouster  by   force  of  a  condition  in  law,  therefore   it  is  to 

be 


233.  a.  233.  b.]  Of  Estates        L.  3.  C.  5.  Sect.  378. 

be  seen  in  what  other  cases  the  grantor  may  lawfully  oust  his 
officer (1). 

There  is  a  diversitie  between  officers  that  have  no  other  profit 
but  a  collaterall  certain  fee,  for  there  the  grantor  may  discharge 
him  of  his  service,  as  to  be  a  bayley,  receiver, 


surveyor,  auditor,  or  the  like,  the  exercise  whereof  is   ["233. ~1 
^^  F;  t'  ^'      .     hut  labour  and  charge  to  him,  but  hee  must  have  his  b. 

iir.  134.  34  H.  S.  ^'^^  '  ^^r  the  main  rule  of  law  is,  that  no  mane  can  frus- 
ibid.  93.  trate  or  derogate  from  his  owne  grant  to  the  prejudice  of  the 

tJ  ^^^9s-  grantee.     And  where  albeit  the  grantee  hath  no  other  profit  but 

/^[o.'s^g'h.  ^^^  ^^"^j  y^*  *^^^  ^^^  ^^  ^°  ^^  perceived  and  taken  out  of  the  profits 
3S1.  F.  N.  B.  appertaining  to  the  lord  within  his  office,  for  there  the  grantor 
KU.Sid.  74.  81.)  cannot  discharge  him  of  his  service  or  attendance,  for  that  may 
9  Rep  50*^'  "'  *^^^^  *^  ^^®  prejudice  of  the  grantee,  if  the  grantor  will  not 
Cro.  Car.  55,  56.  grant  the  office  at  all.  But  in  all  cases  where  the  officer  relin- 
59,  60,  61.  quisheth  his  office,  and  refuseth   to  attend,  he  loseth  his  office, 

fee,  profit  and  all. 

There  is  another  diversity  where  the  grantee,  besides  his  cer- 

taine  fee,  hath  profits  and  availes  by  reason  of  his  office;  there 

the  grantor  cannot  discharge  him  of  his  service  or  attendance, 

for  that  should  be  to  the  prejudice  of  the  grantee.     As  if  a  man 

doth  grant  to  another  the  office  of  the  stewardship  of  his  courts 

of  his  mannors  with  a  certain  fee,  the  grantor  cannot  discharge 

him  of  his  service  and  attendance,  because  he  hath  other  profits 

and  fees  belonging  to  his  office,  which  he  should  lose  if  he  were 

22  11.  6. 10.  3.     discharged   of  his  office.     And  as  in  the  case  which  Littleton 

6  E.  6.  Dier,  71.  here  putteth  of  the  office  of  the  keeper  of  a  parke,  for  that  hee 

hath  not  onely  his  fee  certaine,  but  profits  and  availes  also,  in 

respect  of  his  office,  as  deere  skinnes,  shoulders,  &c.     But  now 

let  us  proceed  and   see  what  other  particular  forfeitures  in  law 

bee  of  this  office  here  spoken  of  by  Littleton,  and  somewhat  of 

conditions  in  law  in  generall. 

(Ant.  54.  a.)  And  it  is  to  be  understood,  that  if  any  keeper  kill  any  deere 

15  E.  4.  3.  b.       without  warrant,  or  fell  or  cut  any  trees,  woods,  or  underwoods, 

2S  H  8    '  ^^^  convert  them  to  his  owne  use,  it  is  a  forfeiture  of  his  office, 

Bendloes  enter    for  the  destruction  of  vert  is,  by  a  meane,  destruction  of  venison. 

evesque  de  Lon-  gg  jt  is  if  he  puU  downe  the  lodge,  or  any  house  within  the  park 

11^9  fo  to^^'b   ^^^  putting  of  hay  into  it  for  feeding  of  the  deere  or  such  like, 

9rt.  99.  '  it  is  a  forfeiture ;  and  the  reason  wherefore  the  office  in  these  and 

r./]  Mich.  ll^Q  cases  shall  be  forfeited  [/j  is,  quia  in  quo  aids  delinquit  in 

33  K.  1.  coram  7     •  .  •       1  • 

regeinThesaur.   ^^^'^^"'■^««'/!""^'f^^t  ,,         ,  ,,        ^  . 

I'evesque  de  As  to  conditions  in  law,  you  shal  understand  they  bee  01  two 

Durham's  case,  natures,  that  is  to  say,  by  the  common  law,  and  by  statute. 
PI.  Com.  3(3.  a  j^^^  those  by  the  common  law  are  of  two  natures,  that  is  to  say, 
Kevill's  ease,  the  one  is  founded  upon  skill  and  confidence,  the  other  without 
21.  E.  4.  20.  93.  skill  or  confidence  :  upon  skill  and  confidence,  as  here  the  office 
i^^o'''^^'*.^/^      of  parkership,  and  other  offices  in  the  next  Section  mentioned, 

Lib.  8.  10.  44.  f   .      ...     '■ '  ' 

W'ittingham's       ai^d  the  like.         ...  .       •        . 

case.  Touching  conditions  in  law  without  skill,  &c.  some  be  by  the 

common  law  and  some  by  the  statute.     By  the  common  law  as 

to 

(1)  Since  sir  Edward  Coke's  time,  several  statutes  have  been  passed,  par- 
ticularly 25  Car.  2  cha.  2.  13  W.  3  ch.  6.  and  1  An.  ch.  22.  by  which  all  per- 
sons admitted  into  offices  civil  or  military  are  to  take  the  oaths  of  allegiance 
and  supremacy,  otherwise  they  forfeit  their  offices,  and  incur  other  penalties. — 
But  with  respect  to  Roman  Catholics,  see  post.  391.  a.  note  2. — [Note  146.] 


L.  3.  C.  5.  Sect.  378.     upon  Condition.      [233.  b.  234.  a. 

to  every  estate  of  tenant  by  the  courtesie,  tenant  in  tayle  after 
possibility  of  issue  extinct,  tenant  in  dower,  tenant  for  life, 
tenant  for  years,  tenant  by  statute  merchant  or  staple,  tenant 
by  dcrjit,  gardian,  &c.  there  is  a  condition  in  law  secretly  an- 
nexed to  their  estates,  that  if  they  alien  in  fee  (1),  &c.  that  he 
in  the  reversion  or  remainder  may  enter,  et  sic  dc  similihua,  or 
if  they  claime  a  greater  estate  in  court  of  record,  and  the  like. 

Concerning  conditions  in  law  founded  upon  statutes,  for  some 
of  them  an  entrie  is  given,  and  for  some  other  a  recovery  by 
action :  where  an  entrie  is  given,  as  upon  an  alienation  in  mort- 
maiue,  &c.  and  the  like  :  where  an  action  is  given,  as  for  waste 
against  tenant  for  life  and  yeares,  and  the  like. 

"And  such  condition  as  is  intended  hy  the  law  to  he  annexed 
to  any  thing  is  as  strong,  d-c."  Here  it  is  worthy  the  observation 
to  take  a  view  of  the  divisions  aforesaid  in  some  particular  case. 
As  for  example.     Admit  that  an   office   of  parkershippe  bee  (Cro,  Car.  279.) 
granted  or  descend  to  an  infant  or  feme  covert,  if  the  conditions  ^yl^fjjg^^a^fs 
in  law  annexed  to  this  office  which  require  skill  and  confidence  case, 
be  not  observed  and  fulfilled,  the  office  is  lost  for  ever,  because,  (Mo.  92. 
as  Littleton  saith  here,  it  is  as  strong  as  an  expresse  condition.  1  ^^-  '^•^ 
But  if  a  lease  for  life  be  made  to  a  fem  covert,  or  an  infant,  and  pi^_  205.  ' 
they  by  charter  of  feoff'ment  alien  in  fee,  the  breach  of  this  con-  Ant.  100.) 
ditidn  in  law,  that  is,  without  skill,  &c.  is  no  absolute  forfeiture 
of  their  estate.    So  of  a  condition  in  law  given  by  statute,  which 
giveth  an  entrie  onely.     As  if  an  infant  or  feme  covert  with  her 
husband  aliens  by  charter  of  feoifment  in  mortmaine,  this  is  no 
barre  to  the  infant  or  feme  covert.     But  if  a  recovery  be  had 
against  an  infant  or  fem  covert  in  an  action  of  waste,  there  they 
are  bound  and  barred  for  ever. 

And  it  is  to  be  observed,  that  a  condition  in  law  by  force  of 
a  statute  which  giveth  a  recovery,  is  in  some  cases  more  strong 
than  a  condition  in  law  without  a  recovery.  For  if  lessee  for 
life  make  a  lease  for  yeares,  and  after  enter  into  the  land,  and 
make  waste,  and  the  lessor  recover  in  an  action  of  waste,  he 
shall  avoid  the  lease  made  before  the  waste  done.  But  if  the 
lessee  for  life  make  a  lease  for  years,  and  after  enter  upon  him, 
and  make  a  feoifment  in  fee,  this  forfeiture  shall  not  avoid  the 
lease  for  yeares.  Nor  in  any  of  the  said  cases  a  precedent  rent 
granted  out  of  the  land  shall  be  avoyded.  For  if  lessee  for  life  (Ant.  185.  a.) 
grant  a  rent  charge,  and  after  doth  waste,  and  the  lessor  reeo- 

vereth  in  an  action  of  wast,  he  shall  hold  the  land 
r334."]  J8@°'  charged  during  the  life  of  the  tenant  for  life,  but 
|_     a.     J  if  the  rent  were  granted  after  the  waste  done,  the 

lessor  shall  avoid  it. 

And 


(1)  But  this  must  be  understood  of  an  alienation  which  divests  the  remain- 
der or  reversion,  as  a  feoifment,  fine,  or  common  recovery;  but  a  conveyance 
by  lease  and  release,  or  bargain  and  sale,  is  no  forfeiture.  Neither  is  it  a  for- 
feiture of  the  particular  estate,  if  the  reversioner,  or  remainder-man  in  fee, 
ioinswith  the  tenant  for  life  or  years  in  making  the  alienation;  nor  is  his  grant 
of  an  advowson.  remainder,  or  any  thing  else  which  lies  in  grant,  a  forfeiture. 
But  if  a  tenant  for  life  or  years  claims  the  fee,  as  by  joining  the  mise  upon  the 
mere  right;  or  if  he  affirms  the  fee  to  be  in  a  stranger,  as  by  accepting  a  fine 
sur  conusance  de  droit  come  ceo  from  a  stranger,  it  is  a  forfeiture.  See  post. 
251.  b.  252.  a.— [Note  147.] 


234.  a.J  Of  Estates        L.  3.  C.  5.  Sect.  378. 

And  the  reason  wherefore  the  lease  for  yeares  in  the  case 

aforesaid  shall  be  avoyded,  is  because  of  necessitie  the  action  of 

waste  must  be  brought  against  the  lessee  for  life,  which  in  that 

case  must  bind  the  lessee  for  yeares,  or  else  by  the  act  of  the 

(Ant.  54.)  lessee  for  life  the  lessor  should  be  barred  to  recover  ?oc?n?i  vasta- 

tum,  which  the  statute  giveth  (1). 
(Post.  338.  b.)  If  a  man  hath  an  office  for  life  wliich  requireth  skill  and  con- 

fidence, to  which  office  he  hath  a  house  belonging,  and  chargeth 
the  house  with  a  rent  during  his  life,  and  after  commit  a  forfeit- 
ure of  his  office,  the  rent  charge  shall  not  be  avoyed  during  his 
life,  for  regularly  a  man  that  takcth  advantage  of  a  condition  in 
law  shal  take  the  land  with  such  charge  as  he  finds  it.  And 
therefore  Littleton  is  here  to  be  understood,  that  a  condition 
in  law  is  as  strong  as  a  condition  in  deed,  as  to  avoid  the 
estate  or  interest  it  selfe,  but  not  to  avoide  precedent  charges, 
but  in  some  particular  cases,  as  by  that  which  hath  beene  said 
appeareth. 
3  H.  7.  ca.  12.  There  be  at  this  day  more  conditions  in  law  annexed  to  offices 

Auditor,  ro-  than  were  when  Littleton  wrote :  for  example,  for  offices  in  any 
ke'eper  of^a^  ^'  ^^^^  touching  the  administration  or  execution  of  justice  or 
castle,  master  clerkship  in  any  court  of  record,  or  concerning  the  king's  trea- 
of  the  game,  sure,  revenue,  account,  customes,  alnage,  auditorship,  king's 
of  an*v  fbrresV^"^  surveyor,  or  keeping  of  any  of  his  majestie's  castles,  forts,  &c. 
parke,  chase,  &c.  For  if  any  of  these  officers  bargaine  or  sell  any  of  the  said  offi- 
7  E.  6.  ca.  1.  ces  or  any  deputation  of  the  same,  or  take  any  money  or  profit, 
Treasurer,  re-  ^^  any  promise,  covenant,  bond,  or  assurance,  to  have  any  money 
bailife',  <fec.  Or  reward  for  the  same,  the  person  so  bargaining  or  selling,  or 

(Vid.  Ant.  3.  6.)  that  shal  take  any  such  promise,  covenant,  bond,  or  assurance, 
l^E^e^*^  ^Vfi  shall  not  only  forfeit  his  estate,  but  also  every  person  so  buying, 
Cro.'  Car.  557.'  giving  or  assuring,  be  adjudged  a  disabled  person  to  have  or 
Cro.  Jac.  386.  enjoy  the  same  office  or  offices,  deputation  or  deputations,  &c. 
3  Inst.  154.  g^jj^  ^ijjj^j.  ^  gygjj  bargains,  sales,  promises,  covenants,  and  assu- 

rances, as  be  before  specified,  shall  be  voide,  except  as  in  the 
said  act  is  excepted. 

Sir  Robert  Vernon,  knight,  being  coferer  of  the  king's  house  of 
the  king's  gift,  and  having  the  receit  of  a  great  summe  of  money 
yearely  of  the  king's  revenue,  did  for  a  certaine  summe  of  money 
bargain  and  sell  the  same  to  sir  A.  L  and  agreed  to  surrender 
the  said  office  to  the  king,  to  the  entent  a  grant  might  be  made 
to  sir  A.  who  surrendred  it  accordingly :  and  thereupon  sir  A.  was 
Mich.  13  Jacobi  by  the  king's  appointment  admitted  and  sworne  coferer.  And  it 
I^ogis.  -yyas  resolved  by  sir  Thomas  Eyerton,  lord  chancellour,  the  chiefe 

justice,  and  others  to  whom  the  king  referred  the  same,  that  the 
said  office  was  void  by  the  said  statute,  and  that  sir  A.  was  dis- 
abled to  have  or  to  take  the  said  office,  and  that  no  non  obstante 
could  dispense  with  this  act  to  enable  the  said  sir  A.  for  the 
reason  and  cause  before  mentioned.  Sect.  180.  And  hereupon 
Lib.  3.  fo.  83,  sir  A.  was  removed,  and  sir  Marmadiike  Darrell  sworne  (by  the 
Colshil's  case,  king's  commandment)  in  his  place.  And  note,  that  all  promises, 
bonds  and  assurances,  as  wel  on  the  part  of  the  bargainor  as  of 

the 

(1)  For  the  recovery  relates  to  the  time  of  the  waste  done,  which  is  paramount 
to  the  grant,  but  it  does  not  relate  to  the  time  of  making  the  estate,  to  avoid 
charges  by  force  of  this  condition  in  law,  unless  in  the  rase  of  a  lease  for  years, 
which  is  of  necessity  to  have  the  place  toasted. — Lord  Nott.  MS. — [Note  148.] 


L.  3.  C.  5.  Sect.  379.     upon  Condition.  [234.  a.  234.  h. 

the  bargainee,   are  void  by  the   same   act.     [*]   NuUd^  alia  re  J*^^^'"^"^- 
ma(j/is  Romana  rei^puhlica  interUt,  qudm  quod  mayistratm  ojficia 
venalla  erant. 

[(/]  Jugurtha  going  from  Rome  said  to  the  city,  Vale  venalis    b]  Salust. 
civitas,  max  peritura  si  emptorem  invenias. 

Therefore  by  the  law  of  England  it  is  further  provided,  that  no  12  R.  2  ca.  2. 
officer  or  minister  of  the  king  shall  be  ordained  or  made  for  any 
gift  or  brocage,  favour  or  affection,  nor  that  any  which  pursueth 
by  him  or  any  other,  privily  or  openly,  to  be  in  any  manner  of 
office,  shall  be  put  in  the  same  office  or  in  any  other,  but  that 
all  such  officers  shall  be  made  of  the  best  and  most  lawful  men 
and  sufficient;  a  law  worthy  to  be  written  in  letters  of  gold,  but 
more  worthy  to  be  put  in  due  execution.  For  certainly  never 
shall  justice  be  duly  administered  but  when  the  officers  and 
ministers  of  justice  be  of  such  quality,  and  come  to  their  places 
in  such  manner  as  by  this  law  is  required. 

"  Such  condition  as  is  intended  hy  the  law  to  he  annexed  to  any 
thing,  is  as  strong  as  if  the  condition  icere  in  writing."    And  this  vid.  Sect.  419. 
accords  with   that  ancient  rule,  Utique  fortior  et  potentior  est  429,  430. 
dispositiolegis  qudm  hominis. 


Sect.  379. 

JNtUs  manner  it  is  of  grants  of  the  offices  of  steward,  constable,  he- 
delarie,  hayliivich,  or  other  offices,  ^c.  But  if  such  office  bee  granted 
to  a  man  to  have  and  to  occupie  hy  himselfe  or  his  deputie,  then  if  the 
office  bee  occupied  by  him  or  his  deputie,  as  it  ought  by  law  to  be  occupied, 
this  sufficethfor  hitn,  or  otherwise  the  grantor  and  his  heires  may  oust 
the  grantee,  as  is  aforesaid,  (ou  auterment*  le  grantor  et  ses  heires 
poient  ouste  f  le  grantee,  come  est  avantdit.) 

"OTEWARD."     Of  this  I  have  spoken  before.  21  E.^^20.^^ 

,      ,    ,  (Ant.  61.  a.) 

"  Constahle.""  Of  this  likewise  something  hath  beene 

[2 34. "I  spoken  J8^"  before.      But  a  constable  is  often  taken  in  8  E.  4.  6. 
b.      J  the  law  for  a  warden  or  keeper,  as  Constcdndarias  casfri  (5  Rep.  59.) 
de  Dover  et  5.  partmnn;  for  the  warden  of  the  castle  of 
Dover  and  the  Cinque  ports,  &c.     So  as  in  this  sense  Constahnla- 
rius  is  taken  for  Castellanus,  and  this  is  proved  by  the  statute  [*]  [*]  W.  1  ca.  7. 
of    W.  1.  ca.  1.  Des  prises  des  Constables  on  Castellains  faitzdcs 
aufers,  &c.   And  Magna  Carta,  \]j]  c.  19.  NuUas  constahularius  m  Magna 
vcl  ejushallivus  cajnathlada  vel  alia  catalla  alien  jus  quinon  sitde  ^''^'^^^'  <=»•  19. 
villa,  uhi castnimsuum  situm  est,  d'c.  Stanford,fo.  152.  Constahu-  ^^^^^\  ^^-^  1^2. 
larius  Turris  London,  for  Custos  Turris,  32  H.  8.  ca.  28.     Con- 
stable of  the  Forest,  for  the  Keeper  of  the  Forest. 


32  II.  8.  ca.  28. 


"  Bedelarie."  Bedell  is  derived  of  the  French  yiov^Beadeau, 
which  signifies  a  messenger  of  the  court,  or  under  baylife,  in 
Latine  BedcUns. 

And  the  oath  of  a  bedell  of  a  manor  is,  that  he  shall  duly  and 

truly 

*  le  grantor — il,  L.  and  M.  andEoh.     f  le  grantee,  not  in  L.  andM.orRoh. 


234.  b.  235.  a.]        Of  Estates       L.  3.  C.  5.  Sect.  380. 

truly  execute  all  such  attachemeuts  and  other  proces  as  shall  be 
directed  to  him  from  the  lord  or  steward  of  his  court,  and  that 
he  shall  present  all  pound  breaches  which  shall  happen  within 
his  office,  and  all  chattels  wayved,  and  estrayes. 

''  Bayliwick."     Of  this  sufficient  hath  beene  said  before. 


Sect.  380. 

A  LSO,  estates  of  lands  or  tenements  may  bee  made  upon  condition  in 
law,  albeit  upon  the  estate  made  there  was  not  any  mention  or  re- 
hearsal made  of  this  condition.  As  put  the  case  that  a  lease  be  made  to 
the  husband  and  tvife,  to  have  and  to  hold  to  them  during  the  coverture 
betweene  them  ;  in  this  case  they  have  an  estate  for  terme  of  their  tivo 
lives  upon  condition  in  law,  scil.  if  one  of  them  die,  or  that  there  be  a 
divorce  between  them,  then  it  shall  be  laivfulfor  the  lessor  and  his  heires 
to  enter,  ^c. 


(1  Roll.  Abr.  TTERE  Littleton  termeth  words  of  limitation  to  be  conditions 
401.  Ant  214.  b.  _[JL  -^  ^avf ;  for  his  first  example  is, 

Post.  242.)  •'  '■  ' 

"  During  the  coverture  hetioeene  them"  durante  coopertura  inter 
COS.     This  word  [durante)  is  properly  a  word  of  limitation,  as 
durante  viduitate,  or  durante  virginltate,  or  durante  vita,  &c. 
And  properly  a  condition   in  law  is,  as  hath   beene  said,  where 
37  H.  6.  27.        i\^Q  law  createth  the  same  without  any  expresse  words. 
t  'a^'ss'  pi'  Duni  also  maketh  a  limitation ;  as  if  a  lease  be  made,  dum  sola 

(Ant.  214.  b.       fucrit,  or  du7n  sola  et  casta  vixerit.  Dummodo  is  also  a 
4  Rep.  3.  a.)        word  of  limitation;    as,  :^^  dummodo  solvei-ct  talem  ["235.1 
r*     t""9'>  redditum.    (^wajjifZ/ualsoisawordof  limitation,  for  if  a  |_     a.      J 

(10  Rep.  42.)       man  grant  a  rent  out  of  the  manor  of  D.  quamdin  the 
Plo.  242.  a.         grantor  shall  bee   dwelling  upon  the  mannor,  this   is   good,  or 
Vaughan^,  6  .      quamdiu  se  bene  gesserit. 

37  a'C^T.     (9  Rep.  95.)     (Ant.  214.  b.     4  Rep.  3.  a.)     14  E.  2.     Grant.  92. 
(10  Rep.  42.  Plo.  242.  a.     Vaughau,  32.  4  Rep.  33.)  37  H.  6.  27.  (9  Rep.  95.) 

10  Ass.  4.  And  SO  by  these  words,  donee,  quousque,  usque  ad,  tamdiu, 
6  E.  3.  8,  9.  21.    ubicunque. 

3  E.  3.  18.  -^ 

19  H.  6.  54.  "  Jy  one  of  them  die,  &c."  For  if  any  of  them  die  the  cover- 
Temps  E.  1.  ture  is  dissolved,  and  consequently  the  state  determined  by  the 
Annuitie,  150.  lij^it^tion. 

11  Ass.  p.  8. 

21  Ass.  p.  18.     26  E.  3.  69.     7  E.  4.  16,    9.  E.  4.  25,  26.    9  H.  6.  39.     14  H.  8.  13. 

"  Or  that  there  he  a  divorce  between  them,  &c."  Here  is  a  dis- 
tinction to  be  understood ;   for  there  bee  two  kinde  of  divorces, 
«  47  E.  3.  27.       «"'"•  one  a  vinculo  matrimonii*,  and  the  other  dmensd  et  thoro. 
39  E.  3.  32,  33.     Divortium  dicitur  a  divertcndo,  or  divortendo,  quia  vir  divcrtitur 

11  H.  4. 14,  76.  ^^  uxore.  Divorces  d  vinculo  matrimonii  arc  these :  Caitsd  pras- 
Bracton,  fo.  293.  ,  .  ^  ..  .  i-  •    •  t^    ^-  ^ 

18  E.  4.  28.  contractus,  causa  metus,  causa  impotentiae  seu  j  rig  id  i  tat  is,  causa 

24  H.S.bastards.  affinitatis,  causd  consanguinitatis,  &c.  And  I reade  in  an  ancient 

Br.  44. 

39  E.  1.  Bastard,  21.     22  E.  4.  tit.  Consultat.  5.     6  E.  3. 249.    25  E.  3.  39. 

record, 


L.  3.  C.  5.  Sect.  380.  upon  Condition.  [235.  a. 

record,  coram  recje  Termino  Pasch.  30  E.  1.  William  de  Cliad- 
icorthe's  case,  that  he  was  divorced  from  his  wife,  for  that  he  did 
carnally  know  her  daughter  before  he  married  the  mother  ',  all 
which  are  causes  of  divorce  preceding  the  marriage. 

A  mensd  et  thoro,  as  causa  adidterii,  which  dissolveth  not  the  (1  '^id-  64. 
marriage  a  vinculo  matrimonii,  for  it  is  subsequent  to  the  mar-  34^j°3go  681 ) 
riage.     And  the  divorce  that  Litdeton  here  speaketh  of  is  in- 
tended of  such  divorces  [*]  as  dissolve  the  marriage  d  vinculo  [*]  Vide  Sect. 
matrimonii,  and  maketh  the  issue  bastard,  because  they  were  ^g?^  ^^  ^^^^ 
not  justce  nupticc.     And  therefore  in  Littleton'?,  case  though  the  5  Rep.  98. 
husband  and  wife  be  divorced  caxtsd  adidterii,  yet  the  freehold  1  Rep.  42. 
continueth,  because  the  coverture  continueth.     And  it  is  further  2'inst'^6's2^^' 
to  be  understood,  that  many  divorces  that  were  of  force  by  the  Vaugii.  221. 
canon  law  when  Z('«/^to«  wrote,  are  not  at  this  day  in  force ;  319.321.) 
for  by  the  statute  of  32  H.  8.  ca.  38,  it  is  declared  that  all  per-  32  H.  8.ca.38. 
sons  be  lawfull  (that  is,  may  lawfully  marry)  that  be  not  prohi- 
bited by  Grod's  law  to  marry,  that  is  to  say,  that  be  not  prohi- 
bited by  the  Leviticall  degrees. 

A  man  married  the  daughter  of  the  sister  of  his  first  wife,  and 
was  drawne  in  question  in  the  ecclcsiasticall  court  for  this  mar- 
riage, alleging  the  same  to  be  against  the  canons ;  and  it  was 
resolved  [h]  by  the  court  of  common  pleas,  upon  consideration  [„]  Tr.  2  Jac. 
had  of  the  said  statute,  that  the  marriage  could  not  be  im-  Rpt.  1032.^ 
peached,  for  that  the  same  was  declared  by  the  said  act  of  par-  J^s^.'^cie'"'"' 
liament  to  be  good,  inasmuch  as  it  was  not  prohibited  by   the  (Cont.  1  Cro. 
Levitical  degrees,  et  sic  de  mnilihus  (1).                                           2S8.    Ace.  Mo. 
^         '                                         ^    ^                                     O  .^4.     907.     Vid.  Sid. 
beet.    434.) 

(1)  This  passage  exposed  sir  Edward  Coke  to  much  censure. — it  was  struck 
out  of  the  third  and  every  following  edition  to  the  ninth. — It  was  restored  to 
its  place  in  that  edition,  and  is  to  be  found  in  all  the  subsequent  editions. — 
The  following  account  is  given  of  this  circumstance  in  Burn's  Ecclesiastical 
Law,  vol.  3.  p.  402.  3d  edit. — "There  are  several  degrees,  which,  although 
"  not  expressly  named  in  the  Levitical  law,  are  yet  prohibited  by  that,  and 
"  by  the  statute  of  32  H.  8.  c.  38,  by  parity  of  reason.  Hence  in  the  case  of 
"  Wortley  and  Watkinson,  a  consultation  was  granted,  where  one  had  married 
«  the  daughter  of  the  sister  of  his  former  wife;  which  (as  sir  John  King  laid 
<'  the  argument)  is  the  same  degree  of  proximity,  as  the  nephew's  marrying 
"  his  father's  brother's  wife ;  and  this  being  expressly  prohibited,  the  other 
'<  by  parity  of  reason  is  so  likewise;  as  it  had  been  declared  E.  16  J.  in  Pen- 
"  nington's  case,  before  the  High  Commissioners.  Which  point  was  again 
"  argued  T.  1  An.  in  the  case  of  Snowling  and  Nursey,  and  consultation 
<'  granted  as  before,  notwithstanding  the  case  of  Richard  Parsons,  mentioned 
"  by  lord  Coke,  1  Inst.  235.  in  which  it  was  first  determined  not  to  be  within 
«  the  Levitical  degrees,  and  prohibition  granted ;  but  a  consultation  being 
"  awarded  on  debate,  two  years  after,  that  case  is  said  to  have  been  expunged 
"  out  of  the  First  Institute,  by  order  of  the  King  and  Council.  And  this 
"  was  the  very  point  in  which  (presently  after  the  making  of  the  act)  lord 
"  Cromwell  desired  a  dispensation  for  one  Massey,  who  was  contracted  to  his 
"  sister's  daughter  of  his  late  wife ;  but  the  archbishop  denied  it,  as  contrary 
"  to  the  law  of  God,  and  gave  for  reason,  that  as  several  persons  are  prohi- 
"  bited,  which  are  not  expressed,  but  understood  by  like  prohibition  in  equal 
"  deffree ;  so  in  this  case,  it  being  expressed  that  the  nephew  shall  not  marry 
«  his  uncle's  wife,  it  is  implied,  that  the  niece  shall  not  be  married  to  the 
*' aunt's  husband.  Gibs.  412,413.  Much  less  can  it  be  doubted,  whether 
"  the  like  rule  concerning  parity  of  reason,  doth  not  forbid  the  uncle  to 
"  marry  his  niece,  which,  though  not  expressly  forbidden,  is  virtually  pro- 

''  hibited 


235.  a.  235.  b.]  Of  Estates    L.  3.  C.  5.  Sect.  381 


Sect.  381. 

A  ND  that  they  have  an  estate  for  term  of  their  tivo  lives  is  proved 
thus :  Every  man  that  hath  an  estate  of  freehold  in  any  lands  or 
tenements,  either  he  hath  an  estate  in  fee,  or  in  fee  taile,  or  for  terme  of 
his  oivn  life,  or  for  terme  of  another  man  s  life,  and  by  such  a  lease  they 
have  a  freehold,  but  they  have  not  by  this  grant  fee,  nor  fee  taile,  nor  for 
terme  of  another  s  life,  ergo,  they  have  an  estate  for  terme  of  their  owne 
lives,  hut  this  is  upon  condition  in  laive  in  forme  aforesaid;  and 
in  this  case  if  they  shal  do  wast,  the  feoffor  shall  j|@=>  have  a  r235."| 
ivrit  of  tvaste  against  thon,  sup2}osiny  by  his  tvrit,  quod  tenet  2id  L  b.  J 
terminum,  vitne  &c.  *  but  in  this  (A)  count  he  shall  declare  how 
and  in  ivhat  manner  the  lease  was  made. 

PI.  Com.  561.  b.  "  TS proved  thus."  By  this  argument  logically  drawne  d  di- 
Vid.  Sect.  345.  "^  visione,  it  appeareth,  how  necessary  it  is  that  our  student 
simile.  should  (as  Littleton  did)  come  from  one  of  the  universities  to  the 

studie  of  the  common  law,  where  he  may  learne  the  liberall  arts, 
and  especially  logick,  for  that  teacheth  a  man  not  onely  by  just 
argument  to  conclude  the  matter  in  question,  but  to  discerne 
betweene  truth  and  falsehood,  and  to  use  a  good  method  in  his 
studie,  and  probably  to  speake  to  any  legall  question,  and  is 
defined  thus,  diabetica  est  scientia prohabilifer  de  quovis  themate 
disserendi,  whereby  it  appeareth  how  necessary  it  is  for  our 
student. 

37  H.  6.  27.  "  Supposing  by  his  writ,  quod  tenet  ad  terminum  vitaj,  d'c." 

This  and  the  rest  of  this  section  is  evident  and  plaiue. 

Sect. 

*  but — and,  in  L.  and  M.  and  Roh, 

(A)  The  word  "  this"  seems  to  be  here  inserted  for  "  his".     See  Mr.  Bitso's  Mr.  p.  112. 


''  hibited  in  the  precept  that  forbids  the  nephew  to  marry  the  aunt;  nor  is  it 
"  of  moment  to  allege,  that  the  first  is  a  more  favourable  case,  as  the  natural 
"superiority  is  preserved;  since  the  parity  of  degree,  which  is  the  proper 
"rule  of  judging,  is  the  very  same.  Gibs.  413.  But  where  in  the  case  of 
"  Harrison  and  Burwell,  T.  20  C.  2.  in  the  spiritual  court,  one  had  married 
"  the  wife  of  his  great  uncle,  this  was  declared  not  to  be  within  the  Levitical 
"degrees;  and  accordingly,  after  the  opinion  of  all  the  judges  taken  by  the 
"  king's  special  command,  a  prohibition  was  granted.  Gibs.  413." — Note,  the 
case  of  Richard  Parsons,  T.  2.  Ja.  Ro.  1032.  xchere  a  man  may  marry  the 
daughter  of  his  wife's  sister,  which  is  in  the  editions  of  1628,  and  that  of  29, 
and  is  here  left  out.  See  Moor,  1266.  3Iannes  case,  33  Eliz.  in  the  case  of  the 
icidmc  of  07ie  Rennington,  who  claimed  a  widoiv' s  estate,  but  was  denied,  because 
she  was  niece  to  the  former  wife  of  Rennington,  loho  had  done  penance  for  the 
incestuous  marriage;  but  it  was  resolved  she  should  have  her  widow  s  estate, 
because  there  was  never  any  divorce  had  in  the  life  of  her  husband,  though 
there  w-as  cause.  Hob.  181.  in  the  case  of  Howard  v.  Bartlett.  2  Inst.  683. 
1  Cro.  228.  Vaugh.  302.  Hill  v.  Geed,  3  Lev.  364.  Vide  auxy,  2  Jones,  118. 
6  Mo.  161.  andB.  Stilling jlec( &  Life,  121.— Lord  Nott.  MS.— [Note  149.] 


L.  3.  C.  5.  Sect.  382-83.      upon  Condition.        [235.  b. 

Sect.  382. 

]N  tie  same  manner  it  is,  if  an  abbot  make  a  lease  to  a  man  for 
yeares  (B),  to  Jiave  and  to  hold  to  Mm  during  the  time  that  the 
lessor  is  abbot  (En  mesme  le  manner  est,  si  un  abbe  fait  un  lease  a  un 
home  a  aver  et  tener  a  luy  durant  le  temps  que  le  lessor  est  abbe) ; 
in  this  case  the  lessee  hath  an  estate  for  term  of  his  oum  life :  but  this  is 
upon  condition  in  kno,  scilicet,  That  if  an  abbot  resigne,  or  be  deposed, 
that  then  it  shall  be  lawfullfor  his  successor  to  enter,  ^-c. 

"  TFan  allot."     So  it  is  of  a  bishop,  archdeacon,  and  other  yi^e  Bract. 
-^  ecclesiastical!  or  tcmporall  body  politique  or  corporate,  or  r.h.  5.  414. 
of  any  officer  or  graduate,  or  the  like.  (Plowd.       .) 

"Resigne  or  le  deposed."     And  so  it  is  of  a  translation  and 
cession. 

Sect.  383. 

A  LSO,  a  man  may  see  in  the  Book  of  Assises,  an.  38  E.  3  |  p.  3,  a 
plea  of  Asssise  in  this  form  folloiving ,  scilicet,  An  assise  o/ Novel 
Disseisin  was  sometime  brought  against  A.  who  pleaded  to  the  assise,  and 
it  was  found  by  verdict,  that  the  ancestour  of  the  jjlaintife  devised  his 
lands  to  bee  sold  by  the  defendant,  ivho  was  his  executor,  and  to  make 
distribution  of  the  money  for  his  soule  :  and  it  was  found,  that  presently 
after  the  death  of  the  testator,  one  tendred  to  him  a  certaine  sum  of  money 
for  the  lands,  but  not  to  the  value,  and  that  the  executor  afterwards  held 
the  lands  in  his  own  hands  two  yeares,  to  the  entent  to  sell  the  same 
dearer  to  some  other  ;  and  it  was  found  that  he  had  all  the  time  taken 
the  profits  of  the  lands  to  his  own  use,  without  doing  any  thing  for  the 
soule  of  the  deceased,  cj-c.  I^Ioubray  *  justice  said,  the  executor  in  this 
case  is  bound  by  the  law  to  make  the  sale  as  soone  as  he  may  after  the 
death  of  his  testator,  and  it  is  found  that  hee  refused  to  make  sale,  and 
so  there  luas  a  default  in  him,  and  so  by  force  of  the  devise  he  ivas  bound 
to  put  all  the  profits  camming  of^  the  lands  to  the  use  of  the  dead  (et 
issint  per  force  del  devise  i'l  fuist  tenus  d'aver  mis  scuts  le  profits  T 
avenants  de  les  tenements  al  use  le  mort),  and  it  is  found  that  hetooke 
them  to  his  oivne  use,  and  so  another  default  in  him.  Wherefore  it  iva_s 
adjudged,  that  the  PV  should  recover.  §  And  so  it  appeareth  by  the 
said  judgment,  that  by  force  of  the  said  devise  the  executor  had  no  estate 
nor  power  in  the  lands,  but  upon  condition  in  law. 

"  rfllE  look  ofAsuaea,"  is  a  booke  of  the  Reports  of  Cases  in 

■'-    the  raigne  of  King  Edward  the  Third,  and  it  is  called  the 

Booke  of  Assises,  because  the  greatest  part  of  the  cases  therein 

are 

X  p.  3,  not  in  L.  and  M.  or  Roh.  f  avenants—  prevenantes,   in   L. 

*  justice  said,  not  in  L.  and  M.  or  and  M.  and  Roh. 

B,oh.  §  <^^c-  added  in  L.  and  M.  and  Roh. 

(B)  It  seems,  that  the  text  should  he  read  as  if  the  words  "  for  yeares"  had  been 
omitted.  See  Mr.  Bi'lso's  Intr.  p.  112.  It  is  ohservahle  that  the  original  French 
does  not  warrant  the  insertion,  in  the  translation,  of  the  words  in  question. 


235.  b.  236.  a.  &  b.J    Of  Estates     L.  3.  6.  5.  Sect.  383. 

are  upon  writs  of  assises  brought,  as  hath  been  said,  and  which 
hath  beene  cited  before. 

'^  Devised  his  lands  to  he  soM  hy  his  executor."  This 
must  J5@°  be  intended  to  be  of  lands  devisable  by  r^SG."] 
customc,  for  lands  by  the  common  law  were  not  devis-  L  ^-  J 
able  (as  hath  been  said) :  for  in  this  section  is  implyed 
(Latch.  9  Ant.  a  diversity,  viz.  when  a  man  deviseth  that  his  executor  shal  sell 
113.  a.  181.)  the  land,  there  the  lands  descend  in  the  meane  time  to  the  heire, 
and  until  the  sale  bee  made  the  heire  may  enter  and  take  the 
profits.  But  when  the  land  is  devised  to  his  executor  to  be  sold, 
there  the  devise  taketh  away  the  descent,  and  vesteth  the  state 
of  the  land  in  the  executor,  and  he  may  enter  and  take  the 
profits,  and  make  sale  according  to  the  devise.  And  here  it 
appeareth,  by  our  author,  that  when  a  man  deviseth  his  tene- 
ments to  be  sold  by  his  executors,  it  is  all  one  as  if  he  had  de- 
vised his  tenements  to  his  executors  to  be  sold :  and  the  reason 
is,  because  he  deviseth  the  tenements  whereby  hee  breakes  the 
descent  (1). 

"  Moichrai/."     John  Moicbraij  was  a  reverend  judge  of  the 
court  of  common  pleas,  and  descended  of  a  noble  family. 

''  The  executor  in  this  case  is  bound  hy  the  law  to  make  the  sale 
as  soone  as  he  may  after  the  death  of  his  testator,  &c."  And  the 
reason  hereof  is,  for  that  the  meane  profits  taken  before  the  sale 
(4  Rep.  81.  b.)  shall  not  bee  assets,  so  as  he  may  be  compellable  to  pay  debts 
with  the  same,  and  therefore  the  law  will  inforce  him  to  sell  the 
lands  as  soone  as  he  can,  for  otherwise  hee  shall  take  advantage 
of  his  owne  laches :  but  if  a  man  devise  that  his  executor  shall 
sell  his  land,  there  he  may  sell  it  at  any  time,  for  that  he  hath  but 
a  bare  power,  and  no  profit.  And  by  this  case  it  appeareth  what 
(3  Cro.  19.  construction  the  law  maketh  for  the  speedy  payment  of 

21.  a.)  debts.  And  here  is  to  be  observed,  that  many  (fclT^'words   ["336.  "J 

in  a  will  doe  make  a  condition  in  law,  that  make  no  con-  L     b-     J 
dition  in  a  deed :  As  here  to  devise  lands  to  an  execu- 
Mich.  31  k  32      *'^''  *^^^  vendendum,  so  if  lands  be  devised  to  one  ad  solvendum  201. 
El.  in  the  King's  to /.  *S'.  Or  paying  twentie  pounds  to  /.  JV.  this  amounts  to  a  con- 
Bench.  Crick-     (Jition.    And  Cric/cmers  case  was  this  :  A  man  seised  of  certaine 

adjudg. by.  6  E.  6.  fo.  74.  7  E.  6.  70.  (1  Leo.  174.)  10  Rep.  41.  (Cro.  Car.  185.) 

lands 

(1)  Co.  25.  b.  Porter's  case.  Breach  of  condition  assir/ned,  because  he  has 
not  performed  2cithin  convenient  time,  viz.  S  years. — Ant.  113.  cont.  that  where 
lands  are  devised  to  executors  to  sell,  and  one  refuses,  yet  it  is  within  21  //.  8. 
though  it  be  an  interest,  and  though  the  words  of  the  statute  are,  where  lands  are 
willed  to  he  sold  hy  executors,  which  gives  only  a  jyower  ;  so  there  was  a  diffe- 
rence between  them. — 49  B.  3.  17.  The  case  icas,  a  woman  seised  of  lands  in 
London  devised  them  to  be  sold  hy  her  executors,  and  died  without  an  heir  ;  that 
devise  prevented  the  escheat  which  the  hing  pretended  to  have,  and  the  executors 
could  enter  and  sell,  therefore  more  than  a  bare  a  iitho7'ity  passed.  Yet  in  1651, 
on  evidence  at  the  bar,  between  Wilkinson  and  White,  this  case  was  started  ;  and 
lord  chief  justice  Rolls  doubted  of  this  opinion,  because,  he  said,  it  was  only  a 
descent,  according  to  the  words  of  Littleton  ;  and  that  it  appeared  to  him,  that 
when  lands  are  devised  to  he  sold  hy  executors,  there  no  interest  jynsses,  as  in  the 
last  clause  here. — See  ant,  p.  113.  a.  note  2. — Lord  Nott.  MSS. — [Note  150.] 


L.  3.  C.  5.  Sect.  384.      upon  Condition.  [236.  b. 

lands  holden  in  socage  had  issue  two  daughters  A.  and  B.  and 
devised  all  his  lands  to  A.  and  her  heires,  to  pay  unto  B.  a  cer- 
taine  summe  of  money  at  a  certaine  day  and  place ;  the  money 
was  not  paid,  and  it  was  adjudged,  That  these  words,  "  to  pay," 
&c.  did  amount  in  a  will  to  a  condition :  and  the  reason  was, 
for  that  the  land  was  devised  to  .4.  for  that  purpose,  otherwise 
B.  to  whom  the  money  was  appointed  to  be  paid,  should  be 
remedilesse,  et  interest  reipuUica;  huprema  Jiominum  tedamenla 
rata,  haheri :  and  the  lessee  of  B.  upon  an  actuall  ejectment 
recovered  the  moitie  of  the  land  against  A. 

"  And  so  it  appeareth  hy  the  judgement,  &c."  This  conclusion 
upon  a  judgment  is  of  great  authoritie  in  law,  quia  judiciuin 
jrro  veritate  acripitur,  and,  as  it  hath  beene  said,  Judicium  is 
quasi  juris  dictum. 

Sect.  384. 


/jiVi)  77iani/  other  things  there  are  of  estates  upon  condition  in  law 
(t  Et  mults  auters  choses  et  cases  y  sont  d'estates  sur  condition 
en  la  ley),  and  in  such  cases  he  needed  not  to  have  shewed  any  deed,  re- 
hearsing the  condition,  for  that  the  lawitselfepurporteththe  condition,^c. 
Ex  paucis  dictis  intendere  plurima  possis. 
More  shall  he  said  of  conditions  in  the  next  chapter  (Plus  serra  dit  de 
conditions  en  le  %  procheiu  chapter),  m  the  chapter  of  Releases,   and  in 
the  chapter  of  Discontinuance. 

HEREBY  it  appeareth  that  limitations  (which,  as  hath  beene  9  ^4.  36.^ 
said,  Littleton  termeth  conditions  in  law)  may  be  pleaded  ^  Rep^*38.) 
without  deed :  and  the  reason  of  our  author  is  observable, 
because  the  law  in  itselfe  purporteth  the  condition,  whereof 
somewhat  hath  bin  said  before,  and  therefore  looke  backe  to 
the  conditions  in  law,  or  words  of  limitation,  and  withall  that  a 
strano-er  may  take  advantage  of  a  limitation,  as  hath  beene 
said.  .      (Ant.  214.  b.) 

Littleton  having  spoken  at  large  of  conditions  in  deed  and  in  Vide  Sect.  220. 
law,  somewhat  secmeth  necessary  to  bee  said  of   defeasances, 
whereby  the  state   or  right  of  freehold  and  inheritance  may  be 
defeated  and  avoyded. 

^'Defeasance.'"  Defeisantia,  is  fetched  from  the  French  word  ^^^^^  j.  ^  ^^^^ 
defaire,  i.  e.  to  defeat  or  undo,  infectum  redderc  quod  factum  est.  ^7  ^gs_  p'2.' 
There  is  a  diversitie  between  inheritances  executed,  and  inherit-  5  E.  3. 
ances  executorie :  as  lands  executed  by  livery,  &c.  cannot^  by  42  E.  3.  L 
indenture  of  defeasance  be  defeated  afterwm'ds.     And  so  if  a  4.^  Ass.  12. 
disseisee  release  (A)  a  disseisor,  it  cannot  bee  defeated  by  in-  7  11.  6.  43. 
dentures  of  defeasance  made  afterwards;  but  at  the  time  of  the  32^^ ^3 ^Annu 
release  or  feoffment,  &c.  the  same  may  be  defeated  by  indentures  3Q     '5  g  3  °"' 
Annuity,  44.    30  Ass.  p.  1.    30  Ass.  p.  11.    31  Ass.  32.    Ant.  207.  a.    (1  Roll.  Abr.  590.) 

of 

I  Et  mults  auters  choses  et  cases  y  J  prochein  chapter  —  chapitre  de 
sont  d'estates  sur  condition  en  la  ley, .  discentz  que  toUent  entres,  in  L.  and 
not  in  L.  M.  or  Roh.  M.  and  Roh. 

(A)  The  word  to  seems  to  le  here  requisite. 


236.  b.  237.  a.]        Of  Estates       L.  3.  C.  5.  Sect.  384. 

of  defeasance,  for  it  is  a  maxime  in  law,  Quae  incontinenti  Jiunt 
ill  esse  videntur  (1). 

B^^Butrents,  annuities,  conditions,  warranties,  and  r337.~| 
such  like,  that  be  inheritances  esecutorie,  may  be  de-  L     ^*     J 
feated  by  defeasances  made,  either  at  that  time,  or 
any  time  after :  and  so  the  law  of  statutes,  recognizances,  obli- 
gations, and  other  things  executorie. 


20  Ass.  pi.  7. 
7  E.  4.  2U. 
Browning  and 
Eeston's  case, 
PI.  Com.  131. 
28  H.  8. 
Dier,  6. 
27  H.  S.  15. 
19  R.  2. 
Done,  10. 
Albanie's  case, 
lib.  1.  107. 


(6  Eep.  32. 
3  Rep.  Twyne's 
case.)    (®)27 
H.  8.cap.  10. 
(Cro.  Car.472. 
Hob.  348. 
9  Rep.  107. 
1  Rep.  173. 
175. 


Lib.  1.  fol.  173, 
174. 

Digge's  case, 
lib.  1.  fol.  107. 
Albanie's  case, 
lib.  10.  fol.  143. 
Scrope's  ease, 
lib.  7.  fol.  12,13. 
Sir  Francis 
Englefield's 
case. 

(2  Roll.  Abr. 
263.  1  Roll. 
Abr.  331.) 


"  Ux  paucis  dictis  intendere  plurima  possis." 

Verses  at  the  first  were  invented  for  the  helpe  of  memoric, 
and  it  standeth  well  with  the  gravitie  of  our  lawyer  to  cite  them. 
By  this  verse  of  our  author  inferences  and  conclusions  in  lilie 
cases  are  warrantable. 

Lastly,  somewhat  were  necessarie  to  be  spoken  concerning 
clauses  of  provisoes,  containing  power  of  revocation  which  since 
Littletcyti  wrote  are  crept  into  voluntarie  conveyances,  which 
passe  by  raising  of  uses,  being  executed  by  the  (*)  statute  of 
27  H.  8,  and  are  become  verie  frequent,  and  the  inheritance  of 
many  depended  thereupon.  As  if  a  man  seised  of  lauds  in  fee, 
and  having  issue  divers  sonnes,  by  deed  indented  covenanteth 
in  consideration  of  fatherly  love,  and  for  the  advancement  of  the 
blood,  or  upon  any  other  good  consideration,  to  stand  seised  of 
three  acres  of  land  to  the  use  of  himselfe  for  life,  and  after  to 
the  use  of  Thomashx?,  eldest  son  in  taile,  and  for  default  of  such 
issue,  to  the  use  of  his  second  son  in  taile,  with  divers  like 
remainders  over ;  with  a  proviso  that  it  shall  be  lawfuU  for  the 
covenantor  at  any  time  during  his  life  to  revoke  any  of  the  said 
uses,  &c.  this  proviso  being  coupled  with  an  use,  is  allowed  to 
be  good  and  not  repugnant  to  the  former  states.  But  in  case 
of  a  feoffment,  or  other  conveyance,  whereby  the  feoffee  or 
grantee,  &c.  is  in  by  the  common  law,  such  a  proviso  were 
merely  repugnant  and  void. 

And  first,  in  the  case  aforesaid,  if  the  covenantor,  who  had 
an  estate  for  life,  doe  revoke  the  uses  according  to  his  power, 
he  is  seised  againe  in  fee  simple  without  entrie  or  claime. 

Secondly,  he  may  revoke  part  at  one  time,  and  part  at  another. 

Thirdly,  if  he  make  a  feoffment  in  fee,  or  levie  a  fine,  &c.  of 
any  part,  this  doth  extinguish  his  power  but  for  that  part ; 
whereas  in  that  case  the  whole  condition  is  extinct.  But  if  it 
be  made  of  the  whole,  all  the  power  is  extinguished ;  so  as  to 
some  purposes  it  is  of  the  nature  of  a  condition,  and  to  other 
purposes  in  nature  of  a  limitation. 

Fourthly,  if  he  that  hath  such  power  of  revocation,  hath  no 
present  interest  in  the  land,  nor  by  the  ceasor  of  the  state  shall 
have  nothing,  then  his  feoffment  or  fine,  &c.  of  the  land  is  no 
extinguishment  of  his  power,  because  it  is  meere  collateral!  to 
the  land. 

Fifthly,  By  the  same  conveyance  that  the  old  uses  be  revoked, 

may 


(1)  A  power  of  revocation  may  be  defeated  by  a  defeasance  made  at  the 
same  time,  or  any  time  after.  1  Rep.  113. — See  Carth.  64.  But  if  a  thing 
executory  on  its  commencement  be  after  executed,  it  cannot  be  defeated  by 
a  subsequent  defeasance.  5  Rep.  90.  b.  In  the  case  of  Cottrell  v.  Purchase, 
lord  Talbot  said  he  should  always  discourage  the  practice  of  drawing  an  abso- 
lute deed,  and  making  a  defeasance,  as  it  wore  the  face  of  fraud.  Ca.  Temp. 
Talbot,  61-64— [Note  151.] 


L.  3.  C.  5.  Sect.  3-18.      upon  Condition.  [237.  a. 

may  new  be  created  or  limited,  where  the  former  cease  ipso  facto 
by  the  revocation,  without  either  entrie  or  claime. 

Sixthly,  That  these  revocations  are  favourably  interpreted,  be- 
cause many  men's  inheritances  depend  on  the  same  (1).  And 
here  I  may  apply  the  abovesaid  verse  : 

Ex  paucis  dictis  mtendere  plurima  possis, 

(1)  Some  observations  will  be  made  in  the  notes  to  the  chapter  of  Releases, 
on  Powers  of  Revocation,  and  other  Powers  deriving  their  effect  from  the  statute 

of  uses. A  reference  was  made,  in  note  1,  p.  216.  a.  to  this  place,  for  some 

observations  on  the  doctrine  of  Conditions jjrecedent,  and  Conditions  stibsequenf. 
In  1  Eq.  Ca.  Ab.  108,  it  is  observed,  "  That  conditions  precedent  are  such  as 
*'  are  annexed  to  estates,  and  must,  at  law,  be  punctually  performed,  before  the 
'•'  estate  can  vest.  A  condition  subsequent  is,  when  the  estate  is  executed  ;  but 
''  the  continuance  of  such  estate  dependeth  on  the  breach  or  performance  of  the 
"condition.  Though  tiiis  distinction  is  often  mentioned  in  courts  of  equity, 
"  yet  the  prevailing  distinction  there  is  to  relieve  against  conditions,  where 
"  compensation  can  be  made,  whether  they  be  precedent  or  subsequent."  This 
observation  is  illustrated  and  confirmed  by  the  cases  collected  under  the  title  of 
Conditions  precedent  and  subsequent,  in  Mr.  Viner's  Abridgment; — and  see 
Francis's  Maxims  of  Equity,  p.  44.  and  Kaims's  Princ.  of  Eq.  51.  81.  ed.  1760. 
— One  of  the  most  material  points  of  discussion,  respecting  the  doctrine  and 
'  different  operations  at  law  and  in  equity  of  Conditions  precedent  and  Conditions 
subsequent,  arises  from  those  cases  where  Conditions  are  annexed  to  Devises, 
making  them  void  on  the  marriage  of  the  devisee  ivithont  consent.  These  cases 
have  frequently  been  discussed  in  our  courts.  All  the  learning  upon  them  is  to 
be  found  in  the  case  of  Harvey  v.  Aston,  Com.  Rep.  726.  1  Atk.  361.  Reynish 
V.  Martin,  3  Atk.  330.  and  Scott  v.  Tyler,  2  Bro.  Ch.  Ca.  488. 

The  doctrine  of  Conditions  precedent  and  subsequent,  also  frequently  applies 
to  cases  arising  on  the  vesting  of  portions  and  legacies  made  payable 
AT  A  FUTURE  TIME.  There  are  few  points  of  legal  learning  upon  which  the 
cases  in  the  books  are  more  numerous,  or  seemingly  more  discordant.  Perhaps 
the  following  distinction  may  serve  to  enable  the  reader  to  reconcile  them. 
I.  It  was  laid  down  in  the  case  of  Pawlet  v.  Pawlet,  2  Vent.  366,  367.  that 
where  a  legacy  is  charged  upon  reed  estate,  if  the  person  entitled  to  it  dies  before 
the  day  of  payment  it  sinks  into  the  land  for  the  benefit  of  the  owner  of  the 
inheritance.  In  Hall  v.  Terry,  1  Atk.  502.  and  Van  v.  Clark,  1  Atk.  510.  lord 
Hardwicke  seems  to  have  thought  himself  bound  by  this  rule  and  decreed  those 
cases  accordingly. — But  in  Lowther  and  Condon,  2  Atk.  130.  Sherman  v.  Col- 
lins, 3  Atk.  319.  Hodgson  v.  Rawson,  1  Ves.  44.  his  lordship  departed  from  this 
rule ;  and  perhaps  the  general  rule  as  it  now  stands,  is, — That  when  a  legacy 
is  given,  charged  upon  a  real  estate,  and  payable  at  a  future  time,  and  there  are 
no  express  words  in  the  will  to  make  it  immediately  a  vested  interest;  there,  if 
a  stronger  implication  to  the  contrary  does  not  arise  from  the  other  parts  of  the 
will,  the  court,  from  its  inclination  to  favour  the  heir,  considers  its  being  so 
charged,  and  so  payable,  as  circumstances  amounting  to  an  implication,  that 
the  testator's  intention  was,  that  it  should  not  vest  till  the  time  in  which  it  is 
made  payable.  Most  clearly  it  is  in  the  testator's  power  to  make  it  immediately 
vested  and  transmissible,  though  charged  upon  a  real  estate,  and  payable  at  a 
future  time,  by  using  express  words  to  indicate  his  intention  that  it  should  be 
so ; — and  if  this  can  be  done  by  express  words,  there  cannot,  it  should  seem,  be 
any  reason  why  it  may  not  be  equally  done  by  implication.  Therefore,  if  there 
are  any  circumstances  or  expressions  in  a  will,  from  which  the  implication,  that 
it  was  the  testator's  intention  to  make  it  immediately  a  vested  legacy,  is  stronger 
than  the  implication  to  the  contrary,  which  arises  from  its  being  charged  upon  a 
real  fund,  and  payable  at  a  future  day,  it  is  to  be  considered  as  a  vested  and 

transmissible 


237. 1).]   Of  Estates  upon  Condition.  L.  3.  C.  5.  Sect.  384. 

transmissible  interest,  notwithstanding  those  circumstances.  One  of  the  cir- 
cumstances, which  the  courts  have  considei'ed  as  affording  very  strong  ground 
to  imply  the  testator's  intention  to  be,  that  the  legacy  should  be  immediately 
vested  and  transmissible,  though  the  payment  is  postponed  to  a  future  time,  is 
where  the  payment  is  postponed  for  reasons  that  are  not  personal  to  the  legatee, 
but  arise  or  seem  to  be  calculated  with  a  view  to  the  circumstances  of  the  fund. 
— Upon  this  ground  lord  Hardwicke  seems  in  a  great  measure  to  have  decided 
in  the  cases  cited  above  of  Lowther  v.  Condon,  Sherman  v.  Collins,  and  Hodg- 
son V.  Rawson. — See  also  King  v.  Withers,  Ca.  Temp.  Talbot,  117.  Butler  v. 
Duncomb,  1  P.  W.  457.  Pitfields  case,  2  P.  W.  513.  Hutchins  v.  Foy  and 
Gover,  Com.  716.     Godwin  v.  Munday,  1  Bro.  Cha.  Rep.  191. 

II.  Where  the  legacy  is  charged  npon  personalty  only  j  there,  if  the  legatee 
dies  before  the  day  of  payment,  his  personal  representatives  become  entitled  to 
the  legacy ;  unless  it  is  to  be  collected  from  the  testator's  will,  that  he  intended 
the  contrary. — In  the  construction  of  bequests  of  this  nature,  there  is  an  estab- 
lished distinction  between  a  gift  of  a  legacy  to  a  man,  at,  or  if,  or  when,  he 
attains  21  (or  any  other  future  event  of  a  similar  nature),  and  a  legacy  payable 
to  a  man  at,  or  if,  or  when,  he  attains  21. — In  the  first  case,  the  attaining  21  is 
held  to  be  individually  applicable  as  much  to  the  substance  as  to  the  payment  of 
the  legacy,  and  therefore  the  legacy  is  held  to  lapse  by  the  death  of  the  legatee 
before  the  time.  In  the  second  case,  the  attaining  21  is  held  to  refer,  not  to  the 
substance,  but  to  the  payment  only  of  the  legacy,  and  therefore,  here  the  legacy 
is  held  not  to  lapse  by  the  death  of  the  legatee  before  the  time. — It  has  been 
held  to  be  an  exception  to  this  distinction,  where  the  testator  has  disposed  of 
the  intermediate  interest  either  to  a  stranger,  or  to  the  legatee.  And  the  dis- 
tinction does  not  hold  where  the  legacy  is  a  charge  upon  real  estate. 

III.  With  respect  to  legacies  charged  on  a  mixed  fund,  consisting  both  of  real 
and  personal  estate ;  if  the  legatee  dies  before  the  time  of  payment,  it  seems  to 
be  settled  that  the  legacy  should  sink  in  the  land,  in  all  cases  of  this  nature 
where  it  would  be  held  to  sink  in  the  land  if  the  fund  consisted  of  real  estate 
only  :  but  this  is  only  so  far  as  it  is  necessary  to  resort  to  the  real  estate ;  for  in 
these  cases  the  legacy  is  still  vested  as  to  the  personal  estate  in  all  cases  where 
it  would  be  vested,  if  the  fund  consisted  of  personal  estate  only.  See  Sherman 
V.  Collins,  3  Atk.  320.  Hodgson  v.  Rawson,  1  Ves.  48.  Duke  of  Chandos  v. 
Talbot,  2  P.  W.  612.  and  Mr.  Cox's  excellent  note  on  the  last  case. 

Since  the  first  publication  of  the  thirteenth  edition  of  these  annotations,  the 
doctrine  of  conditions,  as  applicable  to  legacies,  has  been  fully  and  ably  ex- 
plained by  Mr.  Roper,  in  his  Treatise  upon  the  Law  of  Legacies,  in  two  volumes 
octavo. — A  succinct  statement  of  it  has  been  attempted,  in  the  6th  edition  of 
Fearne's  Essay  on  Contingent  Remainders,  p.  552,  note  1. 

For  the  difference  between  the  common-law  doctrine  of  conditions,  and  that 
of  the  civil  law  and  canon  law,  see  the  second  part  of  Fulbeck's  Parallel,  7th 
Dialogue. 

In  the  former  part  of  these  notes,  some  observations  were  made  on  the  lead- 
ing points  of  the  doctrine  of  mortgages.  The  reader  will  find  every  thing 
relating  to  that  comprehensive  subject,  collected  with  great  industry  and  inge- 
nuity, in  the  Law  of  Mortgages,  by  Mr.  Powell. — [Note  152.] 


Chap. 


L.  3.  C.  6.  Sect.  385.     Of  Discents.        [237.  a.  237.  b. 


Chap.  6.        Discents  wliicli  toll  Entries.        Sect.  385. 

TyiSCENTS  which  toll  entries  are  in  two  manners,  to  wit,  where  the 
discentis  in  fee,  or  in  fee  taile.  Discents  in  fee  which  toll  entries  are 
(Discents  en  fee  que  tollent  entries  *  sont),  as  if  a  man  seised  of  certaine 
lands  or  tenements  is  by  another  disseised,  and  the  disseisor  hath  issue, 
and  dieth  of  such  estate  seised,  now  the  lands  descend  to  the  issue  of  the 
disseisor  by  course  of  laiv,  as  heire  tmto  him.  And  because  the  law  cast  the 
lands  or  teneynents  upon  the  issue  by  force  of  the  discent,  so  as  the  issue 
commeth  to  the  lands  by  course  of  law,  and  not  by  his  own  act,  the  entrie 
of  the  disseisee  is  taken  away,  and  he  is  put  to  sue  a  writ  of  entrie  sur 
disseisin  against  the  heire  of  the  disseisor,  to  recover  the  land.f 

"  TilSCENTS."    This  word  commeth  of  the  Latine  word  dis-  Mirror,  cap.  2. 

cendcre,  id  est,  ex  loco  supcr-iore  in  ivferiorem  movere  ;  and  ^^^  '^  J.^j  "^3-0°"' 
in  legall  understanding  it  is  taken  when  land,  &c.  after  the  death  and  434.' 
of  the  ancestor  is  cast  by  course  of  law  upon   the  heire,  which  Britton, 
the  law  calleth  a  discent.     And  this  is  the  noblest  and  worthiest  y-j^^o*  ^^5* 
meanes  whereby  lands  are  derived  from  one  to  another,  because  (Sij.  193.  Ant. 
it  is  wrought  and  vested  by  the  act  of  law,  and  right  13.  b.  Ant.  163.) 

[337.~|  of  OO"  blood  unto  the  worthiest  and  next  of  the  blood 
b.  J  and  kindred  of  the  ancestor,  and  therefore  it  hath  not 
in  the  common  law  altogether  the  same  signification 
that  it  hath  in  the  civilllaw;  for  the  civilians  call  him,  haredem, 
qui  ex  testamento  succcdit  in  universum  jus  testator  is.  But  by  the 
common  law  he  is  only  heire  which  succeedeth  by  right  of  blood. 
And  this  agreeth  well  with  the  etymologic  of  the  word  (heire)  (Ant.  7.  b.) 
to  whom  the  lands  descend,  for  hares  dicitur  ad  hivrendo  quia 
qui  haeres  est  liaeret,  hoc  est,  proximus  est  sanguine  illi  cujus  est 
haeres.  So  as  he  that  is  haeres,  sanguinis  est  lucres,  &  heres 
hcreditatis. 

"  Discents  wliich  toll  entries  are  in  two  manners^  Here  is  an 
exact  and  perfect  division  made  by  our  author,  and  yet  withall 
plaine  and  perspicuous. 

Now,  as  a  discent  is  the  worthiest  meanes  to  come  to  lands, 
&c.  so  hath  the  heire  more  privileges  than  any  other  that  by 
other  order  or  meanes  come  to  the  lands,  &c.  as  shall  appeare 
hereafter. 

Nota,  In  ancient  time*  if  the  disseisor  had  beene  in  long  pos-  *  Bmcton,  li.  4. 
session,  the  dissei.see  could  not  have  entered  upon  him.  [«]Like-  ^°^:  ^''"■f*,  ^?f: 
wise  the  disseisee  could  not  have  entred  upon  the  feoffee  of  the  pigj.^  j'  4  '^  2. ' 
disseisor,  if  he  had  continued  a  yeare  and  a  day  in  quiet  posses-  [„]  50  e.  3.21. 
sion.  But  the  law  is  changed  in  both  these  cases,  only  the  dying  i  Ass.  13. 
seised  being  an  act  in  law,  doth  hold  at  this  day,  and  this  secmeth  i*^^^   .oj 
to  be  verie  ancient,  for  this  was  the  law  before  the  conquest,  y  ^^jg  15' 
\U\Porro  autem  quam maritus  sine  liteet controversid  scdcm  inco-  29  Ass.  5.  54. 
hierit,  earn  conjux  et  proles  sine  controversid possidento,  si  qua  in  ^  •^^^-  ^2. 
ilium  lisfuerit  illata  viventem,  earn  hceredes  adse  (^perindc  atqne  43  Assise  17. 
is  vivus)  accipiunto.  [6]  Lamb. 

explicat.  fol.  120.  70. 

And 

*sont — est,  in  L.  and  31.  and  Roh.         cCr.  added  in  L.  and  M.  and  Rob. 
Vol.  II.— 17 


237.  b.  238.  a.  1         Of  Discents.      L.  3.  C.  6.  Sect.  385. 

And  one  of  the  reasons  of  this  ancient  law  may  be,  that  the 
heire  cannot  suddenly  by  entendment  of  law  know  the  true  state 
of  his  title.  And  for  that  many  advantages  follow  the  posses- 
sion and  tenant,  the  law  taketh  away  the  en  trie  of  him  that  would 
not  enter  upon  the  ancestor,  who  is  presumed  to  know  his  title, 
and  driveth  him  to  his  action  against  the  heire  that  may  be  igno- 
rant thereof. 

n  H.  7.12.  "And  dicth  of  such  estate  seised."     To  a  discent  that  taketh 

40  E.  3.  24.  away  an  entrie  a  dying  seised  is  necessarie,  as  here  it  appeareth ; 
but  a  man  to  other  purposes  may  have  lands  by  discent  though 
his  ancestor  died  not  seised,  as  hath  beene  said  before. 

So  E.  3.  Gard.  "  0/  lands  or  tenements."     That  is,  of  such  tenements  as  be 

1G2.  6  H.  4.4.     corporeall,  and  doe  lye  in  liverie,  and  not  of  inheritances  which 

i"-  f'  4  14*         ^y^  ^^  g^'^'^t,  as  advowsons,  rents,  commons  in  grosse,  and  such 

F.  N.  B.  143.  Q.  like,  which  bee  inheritances  incorporeall,  and  yet   are   included 

7  H.  4.  12.  5.       within  this  word  (tenements).     For  discents  of  them   doe  not 

"i-^y'^'^'         put  him  that  right  hath  to  an  action ;    and  the  reason  of  this 

diversitie  is,  for   that  houses   serve  for  the  habitation  of  men, 

and  lands  to  be  manured  for  their  sustenance,  and  therefore  the 

heire  after  a  discent  shall  not  be  molested  or  disturbed  in  them 

by  entrie. 

"  Ishy  another  disseised."  The  like  law  is  of  an  abatement  or 
intrusion,  and  of  their  feoffees,  or  donees,  &c. 
(8  Rep.  101.)  Upon  the  words  of  Littleton  a  diversitie  maybe  col- 

(6  Co.  51.  b.)       lected,  that  if  arecoverie  behad  by -4.  J|@°"against^.   rQSS."] 
|3  E.  3.  tit.  3.     and  before  execution  B.  die  seised,  this  discent  shall  L     ^-     J 
45'E!V.°Quare  *  ^^*  ^^^^  away  the  entrie  of  the  recoverer.  But  if  after 
Imp.  139.  execution  B.  had   disseised  the  recoverer  and   died   seised,  this 

27  E.  3.  88.         discent  shall  take   away  the  entrie   of  the  recoverer  within  the 
21  H  6  17  expresse  words  of  Littleton :  and  so  it  is  in  case  of  a  fine. 

3  E.  4.  6.     12  E-  4.  19.        3  H.  7.  3.        6  E.  4.  11.        7  11.  7.  15.        5  H.  7.  21. 
10  H.  7.  5.  b. 

[/<]  5  n.  7.  2.  [??]  A  recoverie  is  had  against  tenant  for  life,  where  the  re- 

mainder is  over  in  fee,  tenant  for  life  dieth,  he  in  remainder 
entreth  before  execution,  and  dieth  seised,  the  entrie  of  the  re- 
coverer is  lawfull,  because  he  is  privy  in  estate  ;  otherwise  it  is 
if  the  discent  had  beene  after  execution. 
45  E.  .^.  Quare  A.  recovereth  an  advowson  against  B.  in  a  writ  of  right,  and 
Imp.  139.  hath  judgment  final ;    the  incumbent  dieth  ;   i?.  by  usurpation 

presents  to  the  church,  and  his  clarke  is  admitted  and  instituted; 
B.  dieth  :  A.  is  put  out  of  possession,  and  the  heire  of  B.  is  not 
so  bound  by  the  judgment  either  in  blood  or  estate  but  that  he 
[o]8  E.  2.  Quare  shall  present,     [o]  B.  levies  a  fine  to  A.  of  an  advowson  to  him 
Imp.  166.  and  his  heires;  after  the   church  becomes  void ;  2?.  presents  by 

(6  Co.  48.)  usurpation,  and  his  clarke  is  admitted  and  instituted  :  this  shall 

put  A.  the  conusee  out  of  possession.  And  the  reason  of  these 
two  cases  is,  for  that  at  the  common  law  every  presentation  to  a 
church  did  put  the  rightful  patron  out  of  possession,  and  did 
put  him  to  his  writ  of  right,  whether  the  presentation  were  by 
title  or  without,  and  therefore  albeit  the  usurpation  were  in  both 
the  said  cases  before  execution,  yet  it  put  the  rightful  patron  out 
of  possession.  So  note  a  diversitie  betweene  a  recoverie  of  land, 
and  of  an  advowson. 

TJie 


L.  3.  C.  6.  Sect.  385.       Of  Discents.  [238.  a. 

"  The  entrie  of  the  disseisee  is  taken  away  (1)."  Here  is  one 
of  the  privileges  which  the  law  giveth  to  the  heire  by  discent  of 
houses  and  lands. 

[^>]  At  the  common  law  if  the  disseisor,  abator,  or  intruder  [p]  L'estatute 
had  died  seised  soone  after  the  wrong  done,  the  disseisee  and  his  ^'^  ^2  H.  8. 
heiros  had  been  barred  of  his  and  their  entrie  without  any  time  y^^^  g^^^^  ^22. 
limited  by  law;  but  now  by  the  statute  [g]  made  since  Littleton  426. 
"wrote,  it  is  enacted,  that  except  such  disseisor  hath  been  in  the  [9]  37  H.  6. 1. 
peaceable  possession   of  such   manners,   lands,  &c.  whereof  he 
shall  die  seised  by  the  space  of  five  yeares  next  after  such  dis-  ^^'^y.'*™/  ^^  , 
seisin,  etc.  without  entrie  or  continuall  claime,  &c.  that   there  ^^^^^ 
such  dying  seised,  &c.  shall  not  take  away  the  entrie  of  such 
person  or  persons,  &c.     But  after  the  five  yeares  the  disseisee 
must  take  such  continuall  claime  as  our  author  hath  taught  us, 
the  learning  whereof  is  necessarie   to  be   knowne.     And  it  is 
said  that  abators  and  intruders  are  out  of  this  statute  (2),  be- 
cause the  statute  is  penall,  and  extends  only  to  a  disseisor,  and 
that  was  the  most  common  mischiefe.    Et  ad  ea  qucn  frequent iiis 
accidiint  Jura  adaptantur. 

The  feoffee  of  a  disseisor  is  out  of  the  said  statute,  and  re-  (11  Co.  46. 
maiues  as  at  the  common  law.     But  te  a  disseisor,  the  statute  is  ^°',^^?'| , -p,. 
taken  favourably   for   advancement  of  the  ancient  right ;    for  j^-'^^  ■2i9_  ^cc. 
whether  the  disseisin  be  without  force,  or  with  force,  it  is  within 
the  statute.     And  albeit  the  statute  speake  of  him  that  at  the 
time  of  such  discent  had   title  of  entrie,  &c.  or  his  heires,  yet 
tlie  successors  of  bodies  politique  or  corporate,  so  you  hold  your- 
selfe  to  a  disseisin,  are  within  the  remedie  of  this  statute,  for  (Post.  246.  a.) 
the  statute  extendeth  cleerly  to  the  predecessor,  being  disseised; 
and  consequently  without  naming  of  his  successor  extendeth  to 
him,  for  he  is  the  person  that  at   the  time  of  such  discent  had 
title  of  entrie. 

But  if  a  man  make  a  lease  for  life,  and  the  lessee  for  life  is 
disseised,  and  the  disseisor  die  seised  within  five  yeeres,  the 
lessee  for  life  may  enter;  but  if  he  die  before  he  doth  enter,  it  Vide  PI.  Com. 
is  said  that  the  entrie  of  him  in  the  reversion  is  net  lawfull,  '' "  ^  supra, 
because  his  entrie  was  not  lawfull  upon  the  disseisor  at  the  time 
of  the  discent,  as  the  statute  speaketh.  But  if  lessee  for  life 
had  died  first,  and  then  the  disseisor  had  died  seised,  he  in  the 
reversion  had  beene  within  the  remedie  of  the  statute,  because 
he  had  title  of  entrie  at  the  time  of  the  discent,  as  the  statute 
speaketh,  and  so  within  the  expresse  letter  of  the  statute,  albeit 
the  disseisin  was  not  immediate  to  him,  and  the  like  is  to  be  said 
of  a  remainder,  &c. 

«  Writ 

(1)  The  outlines  of  the  doctrine  contained  in  this  Chapter  are  thus  sum- 
marily mentioned  by  lord  chief  baron  Gilbert,  in  his  Law  of  Tenures,  p.  21; — 
"  When  any  man  is  disseised,  the  disseisor  has  only  the  naked  possession, 
"  because  the  disseisee  may  enter  and  evict  him ;  but  against  all  other  persons 
"  the  disseisor  has  a  right,  and  in  this  respect  only  can  be  said  to  have  the 
"  right  of  possession,  for  in  respect  to  the  disseisee  he  has  no  right  at  all. 
"  But  when  a  descent  is  cast,  the  heir  of  the  disseisor  has  jus  possessionis, 
"  because  the  disseisee  cannot  enter  upon  his  possession  and  evict  him,  but 
"  is  put  to  his  real  action,  because  the  freehold  is  cast  upon  the  heir." — 
[Note  153.] 

(2)  And  so  are  the  donees  and  feoffees  of  the  disseisor,  for  they  come  by 
title,  though  it  is  a  defeasible  one.     Note  to  the  llth  edition. — [Note  154.] 


238.  a.  238.  bj        Of  Discents.      L.  3.  C.  6.  Sect.  386. 

F.JN.  B.  191.  "  Writ  of  entne  sur  disseisin."     Breve  de  ingressu   super 

disseisinam.     Of  this  writ  somewhat  shall  be  said  in  the  next 
section. 


Sect.  386. 


ThlSCENTS  in  tayle  tvhich  take  away  entries  are  (Discents  en  taile' 
que  tollent  entries  *  sont),  as  if  a  man  he  disseised,  and  the  dis- 
seisor giveth  the  same  land  to  another  in  taile,  and  the  tenant  in  taile 
hath  issue  and  dieth  of  such  estate  seised,  and  the  issue  enter  ;  in  this 
case  the  entrie  of  the  disseisee  is  taken  away,  and  he  is  put  to  sue 
against  the  issue  of  the  tenant  in  taile  a  writ  of  Entrie  sur  disseisin  f. 

''  TklETH  of  such  estate  seised." 

If  a  disseisor  make  a  gift  in  tayle,  and  the  donee 
discontinueth  in  fee,  and  disseise  Jg®""  the  discontinuee,  f  2 38.1 
and  dieth  seised,  this  discent  shall  not  take  away  the  L  ^-  J 
entrie  of  the  disseisee,  for  the  discent  of  the  fee  sim- 
ple is  vanished  and  gone  by  the  remitter;  and  albeit  the  issue 
be  in  by  force  of  the  estate  taile,  yet  the  donee  died  not  seised 
of  that  estate,  and  of  necessitie  there  must  be  a  dying  seised,  as 
hath  beene  said,  which  is  a  point  worthy  of  observation,  and 
implyeth  many  things. 


9  H.  7.  24. 
(Post.  2-10.) 


13  H.  4,  8,  9. 

33  H.  6.  5.  b. 
per  Moyle. 

34  H.  6.  11.  a. 

per  Curiam. 
Vide  Sect.  395. 
(Ante,  206.  b.) 


"/ft  this  case  the  ontrie  of  the  disseisee  is  taJcen  away." 
If  a  disseisor  make  a  gift  in  taile,  and  the  donee  hath  issue 
and  dieth  seised,  now  is  the  entrie  of  the  disseisee  taken  away; 
but  if  the  issue  die  without  issue,  so  as  the  estate  tail  which 
discended  is  spent,  the  entrie  of  the  disseisee  is  revived,  and  he 
may  enter  upon  him  in  the  reversion  or  remainder. 

So  if  there  be  grandfather,  father  and  son,  and  the  son  dis- 
seiseth  one,  and  infeoffeth  the  grandfather  who  died  seised,  and 
the  land  discendeth  to  the  father,  now  is  the  entrie  of  the  dis- 
seisee taken  away;  but  if  the  father  dieth  seised,  and  the  land 
descendeth  to  the  sonne,  now  is  the  entrie  of  the  disseisee  re- 
vived, and  he  may  enter  upon  the  son,  who  shall  take  no  advan- 
tage of  the  discent,  because  he  did  the  wrong  unto  the  disseisee. 
But  iu  the  case  abovesaid  some  have  said,  that  where  after  such 
discent  to  the  father,  he  made  a  lease  to  the  son  for  terme  of 
another  man's  life,  upon  whom  the  disseisee  entred,  that  the  son 
brought  an  assise  and  recovered ;  and  the  reason  that  hath  beene 
yeelded  is,  for  that  the  son  had  not  the  fee  simple  which  he 
gained  by  disseisin,  but  is  a  purchaser  of  the  free-hold  only  from 
the  father,  and  the  discent  remaine  not  purged.  Contrarie  it 
were,  as  it  is  there  said,  if  the  son  were  heire  to  the  discent.  But 
the  booke  cited  there  in  Fitzhcrl.  tit.  Title,  placit.  6.  doth  not 
warrant  that  case,  and  I  hold  the  law  to  be  contrarie,  viz.  that 
the  disseisee  in  that  case  shall  enter  upon  the  disseisor,  as  well 
as  if  the  father  had  conveyed  the  whole  fee  simple  to  the  son, 
for  in  that  case  also  the  discent  to  the  father  is  not  purged.  If 
a  disseisor  make  a  lease  to  an  infant  for  life,  and  he  is  disseised, 
and  a  discent  cast,  the  infant  enters,  the  entrie  of  the  disseisee 

is 

son — est,  L.  and  M.  and  Rah.         f  c&c.  added  in  L.  and  M.  and  Koh. 


13  E.  3.  Br. 
tit.  Entrie 
Cong.  127. 
(Post.  241.  a, 
sect.  395.) 


L.  3.  C.  6.  Sect.  386.     Of  Discents,         [238.  b.  239.  a. 

is  lawful!  upon  him.     More  shall  be  said  of  the  like  matter  in  (Sect,  408. 
this  chapter  hereafter  in  his  proper  place,  Sect.  893.  395.  ^-  ^-  ^- 192.  D.) 

"  W)'it  of  entrie  sur  disseisin."     Breve  do  ingressu  super  dis- 
seisinam.     This  writ  lieth   only  upon  a  disseisin  made  to  the 
demandant  or  to  some  of  his  ancestors,  and  of  this  writ  there  be 
foure  kindes.     The  first  is  a  writ   that  licth  for  the   disseisee  19  h.  6.  56. 
against  the  disseisor  upon  a  disseisin  done  by  himselfe,  and  this  9  H.  5.  9. 
is  called  a  writ  of  entrie  in  the  nature  of  an  assise.     The  second  Bracton,  lib.  5. 
is  a  writ  of  entrie  su7-  disseisin  en  Ic per,  whereof  Littleton  here  fol.  219.  b.  & 
speaketh,  for  the  heire  by  discent  is  in  the  per  by  his  ancestor :  V.^'  ^f''-  ^''^• 
so  it  is  if  the  disseisor  make  a  feoffment  in  fee,  a  gift  in  taile,  or  pjeta,  Mb.  5. 
a  lease  for  life,  for  they  are  in  the  pe?-  by  the  disseisor.  [*]  The  cap.  35. 
third  is  a  writ  of  entrie  sur  disseisin  en  le  per  &  cui ;  as  where  A.  ^.]^'  ^>  ^^^• 
being  the  feoffee  of  D.  the  disseisor  maketh  a  feoffment  over  7  e.  3.  25^"  ^'  ^' 
to  JB.  there  the  disseisee  shall  have  a  writ  of  entrie  sur  disseisin  F.  N.  B.  192. 
of  lands,  &c.  in  which  B.  had  no  entrie  but  by  A.  to  whom  D. 
demised  the  same,  who  unjustly  and  without  judgement  dis- 
seised the  demandant.     These  are  called  (jradus,  degrees,  which 
are  to  be  observed,  or  else  the  writ  is  abatable  ;  for  sicut  natura 
nan  facit  sal  turn,  ita  nee  lex. 

The  fourth  is  a  writ  of  entrie  sur  disseisin  in  le  post,  which 
lieth  when  after  a  disseisin  the  land  is  removed  from  hand  to  hand 
beyond  the  degrees;  and  it  is  called  in  le  post,  because  the  words 
of  the  writ  be,  p)ost  disseisinam  quam  D.  injuste,  &c.  fecit,  &c. 
The  formes  of  these  writs  you  shall  read  in  the  Register  and 
F.  N.  B.  and  therefore  it  were  needlesse  to  recite  them  here. 
So  then  a  degree  is  of  two  sorts;  either  by  act  in  law,  whereof 
Littleton  here  putteth  an  example  of  a  discent,  or  by  act  of  the 
partie,  by  lawfull  conveyance,  as  is  aforesaid.     But  it  is  to  be  14h.  4.  40. 
understood,  that  at  the  common  law,  if  the  lands  were  conveyed  (6  Co.  9.  b.) 
out  of  the  degrees,  the  demandant  was  driven  to  his  writ  of  right, 
in  respect  of  such  long  possession  in  so  many  men's  hands,  which 
the  law  doth  ever  respect  and  favour.     And  therefore  by  the 
statute  [fl]  of  Marlehridge,  the  writ  of  entrie  in  le  post  is  given  ;  r^-i  Marlebr. 
Provisum  est  etiam  quod  si  aUenationes  illce  de  quihus  hreve  de  cap.  29. 
ingressu   dari  consuevit,  per  tot  gradus  fiant,  per   quot   hreve  ^^  ^-  3-  70. 
illud  in  forma  priiis  xisitata  fieri  non  possit  haheant  conquerentes 
hreve  ad  recuperandani  seisinam  suam  sine  mentione 
r239.~j  J8@°  graduum,  ad  cujuscunque  manus per  liujusmodi 
[     a.      J  aUenationes  res  ilia  devcnerit,  per  hreve  originate,  & 
per  commune  consilium  domini  regis  inde  providen- 
dum,  &c.  (1). 

Now 


(I)  The  diflPcrent  degrees  of  title  which  a  person  dispossessing  another  of 
his  lands  acquires  in  them  in  the  eye  of  the  law  (independently  of  any  anterior 
right),  according  to  the  length  of  time  and  other  circumstances  which  intervene 
from  the  time  such  dispossession  is  made,  form  different  degrees  of  presump- 
tion in  favour  of  the  title  of  the  dispossessor ;  and  in  proportion  as  that  pre- 
sumption increases,  his  title  is  strengthened ;  the  modes  by  which  the  posses- 
sion may  be  recovei-ed  vary ;  and  more,  or  rather  different  proof  is  required 
from  the  person  dispossessed,  to  establish  his  title  to  recover. 

Thus,  if  A.  is  disseised  by  B.  while  the  possession  continues  in  B.  it  is  a 
mere  naked  possession,  unsupported  by  any  right,  and  A.  may  restore  his  pos- 
session, and  put  a  total  end  to  the  possession  of  B.  by  an  entry  on  the  lands, 
without  any  previous  action. 

If 


239.  a.]  Of  Discents.     L.  3.  C.  6.  Sect.  386. 

Bracton,  ubi  Now  it  is  necessarie  to  be  knowne,  what  doth  make  a  degree, 

supra.  Britton,  Y'lTst,  DO  estate  gaiued  by  wrong  doth  make  a  degree,  and  there- 
riota,  ubi'supra.  f^^e  neither  abatement,  intrusion,  or  disseisin  upon  disseisin, 
4  E.  2  Brev.  doth  make  a  degree.  Neither  doth  everie  change  by  lawfull  title 
790. 21 H.  6. 8.  °  ^orke 

If  B.  dies,  the  possession  descends  on  the  heir  by  act  of  law.  In  this  case, 
the  heir  comes  to  the  land  by  a  lawful  title,  and  acquires,  in  the  eye  of  the 
law,  an  apparent  riffht  of  jiossession  ;  which  is  so  far  good  against  the  person 
disseised,  that  he  has  lost  his  right  to  recover  the  possession  by  entry,  and  can 
only  recover  it  by  an  action  at  law. — The  actions  used  in  these  cases  are  called 
Possessory  Actions,  and  the  original  writs  by  which  the  proceedings  upon  them 
are  instituted,  are  called  Writs  of  Entry. 

But  if  A.  permits  the  possession  to  be  withheld  from  him,  beyond  a  certain 
period  of  time,  without  claiming  it,  or  suffers  judgment  in  a  possessory  action 
to  be  given  against  him  by  default,  or  upon  the  merits  ;  in  all  these  cases,  B.'?, 
title  in  the  eye  of  the  law  is  strengthened,  and  A.  can  no  longer  recover  by  a 
possessory  action,  and  his  only  remedy  then  is  by  an  action  on  the  right.  These 
last  actions  are  called  Droiturel  Actions,  in  contra-distinction  to  Possessory 
Actions.  They  are  the  ultimate  resource  of  the  person  disseised  ;  so  that,  if  he 
fails  to  bring  his  writ  of  right  within  the  time  limited  for  the  bringing  of  such 
writs,  he  is  i-emediless,  and  the  title  of  the  dispossessor  is  complete.  The  ori- 
ginal writs  by  which  droiturel  actions  are  instituted  are  called  Writs  of  Right. 

The  dilatoriness  and  niceties  in  these  processes,  introduced  the  Writ  of 
Assise.  The  invention  of  this  proceeding  is  attributed  to  Glanville,  chief 
justice  to  Henry  II.  (See  Mr.  Reeves's  History  of  the  English  Law,  Part  I. 
ch.  3.)  It  was  found  so  convenient  a  remedy,  that  persons,  to  avail  them- 
selves of  it,  frequently  supposed  or  admitted  themselves  to  be  disseised,  by 
acts  which  did  not  in  strictness  amount  to  a  disseisin.  This  disseisin,  being 
such  only  by  the  will  of  the  party,  is  called  a  disseisin  by  election,  in  opposition 
to  an  actual  disseisin  :  it  is  only  a  disseisin  as  between  the  disseisor  and  the 
disseisee,  the  person,  thus  propounding  himself  to  be  disseised,  still  continuing 
the  freeholder  as  to  all  persons  but  the  disseisor.  The  old  books,  particularly 
the  Reports  of  Assise,  when  they  mention  disseisins,  generally  relate  to  those 
cases  where  the  owner  admits  himself  disseised.  (See  1  Burr.  111.  and  see 
Bract,  lib.  4.  cap.  3.) 

As  the  processes  upon  writs  of  entry  were  superseded  by  the  assise,  so  the 
assise  and  all  other  real  actions  have  been  since  superseded  by  the  modern 
process  of  ejectment.  This  was  introduced  as  a  mode  of  trying  titles  to  lands 
in  the  reign  of  Henry  VII.  From  the  ease  and  expedition,  with  which  the 
proceedings  in  it  are  conducted,  it  is  now  become  the  general  remedy  in  these 
cases.  Booth,  who  wrote  about  the  end  of  the  last  century,  mentions  real 
actions  as  theii  worn  out  of  use.  It  is  rather  singular  that  this  should  be  the 
case,  as  many  cases  must  frequently  have  occurred,  in  which  a  writ  of  eject- 
ment was  not  a  sufficient  remedy.  Within  these  few  years  past,  some  attempts 
have  been  made  to  revive  real  actions ;  the  most  remarkable  of  these  are  the 
case  of  Tissen  v.  Clarke,  reported  in  3  Wils.  419.  541.  and  that  of  Carlos  and 
Shuttlewood  v.  Lord  Dormer.  The  writ  of  summons  in  this  last  case  is  dated 
the  1st  day  of  December  1775.  The  summons  to  the  four  knights  to  proceed 
to  the  election  of  the  grand  assise,  is  dated  the  2'2d  day  of  May  1730.  To 
this  summons  the  sheriff  made  his  return ;  and  there  the  matter  rested.  The 
last  instance  in  which  a  real  action  was  used,  is  the  case  of  Sidney  v.  Perry. 
In  this  case,  it  was  adjudged  by  Dc  Grey,  chief  justice,  and  all  the  other  judges, 
that  the  defendant,  in  a  writ  of  right,  by  proving  his  actual  possession,  without 
any  evidence  of  his  title,  put  the  demandant  to  the  necessity  of  producing  and 
proving  his  title, — a  point,  of  which,  till  that  decision,  some  doubts  were  enter- 
tained. That  part  of  sir  William  Blackstone's  Commentary  which  treats  upon 
real  actions,  is  not  the  least  valuable  part  of  that  excellent  work. — [Note  155.] 


L.  3.  C.  6.  Sect.  387.         Of  Discents.  239.  a. 

worke  a  degree,  as  if  a  bishop  or  an  abbot,  or  the  like,  disseise    2  Inst.  155. 

one  and  die,  where  his  successor  is  in  by  lawful!  title;  for  though  Stat.  Marl.  30. 

the  parson  (A)  be  altered,  yet  the  right  remaines  where  it  was,     °^''       '  '^^^'' 

viz.  in  the  church,  and  both  of  them  seised  in  the  same  right,  viz. 

in  the  right  of  the   church,  and   therefore  in  that  verie  case 

Bracton  [U]  diemviXi^s  i\iQ  C[\xQ%i\on,  An  faciunt  gradum  dc  ahhate  [j]  Bracton. 

in  ahhatam  sicut  de  hserede  in  haeredem  ?     Et  videtur  quod  non  I'l^-  4.  fol.  .321. 

ma(/is,  qudm  in  computatione  descensus,  quia  et  si  alternatur  per-  ^^\  Ent'e  GG 

Sana,  non  propter  hoc  alternatur  dignitas,  sed  semper  manet.   n  h.  4.  83.  ' 

And  herewith  agreeth  [c]  Fleta.  [c]  Fleta,  lib.  5. 

Also  an  estate  made  to  the  king  doth  make  no  degree,  and  pfP-34.3H.  3. 

therefore  if  a  disseisor  by  deed  inroUed  convey  the  land  to  the  22  E.  3.  7.' 

king,  and  the  king  by  his  charter  granteth  it  over,  the  disseisee  F.  N.  B.  191.  K. 

cannot  have  a  writ  of  entrie  in  le  per  &  cui,  but  in  le  post,  for  the  l?,°l'^'^^?'.^"l„ 
,.,,,.  ,  .    ,  ..       -'r.  1        -^        1     ^1  1  5E.2.  Entrie,b6. 

kmg  s  charter  is  so  high  a  matter  or  record  as  it  maketh  no  degree.  7  e.  3.  360. 

Also  an  estate  of  a  tenant  by  the  curtesie,  or  of  the  lord  by 
escheat,  or  of  an  execution  of  an  use,  by  the  statute  of  27  If.  8. 
or  by  judgment,  or  recoverie,  or  of  any  others  that  come  in  in  the 
JPost;  worke  no  degree,  [d]  But  a  tenancie  in  dower  by  assigne-  ^d]  36  H.  6. 
ment  of  the  heire  doth  worke  a  degree,  because  she  is  in  by  her  Dower,  30. 
husband ;  but  assignement  of  dower  by  a  disseisor  worketh  no 
degree,  but  is  in  the  Post,  as  hereafter  shall  be  said  in  his  proper 
place. 

-When  the  degrees  are  past,  so  as  a  writ  of  entrie  in  the  Post  44  e.  3.  4,  5. 
doth  lye,  yet  by  event  it  may  be  brought  within  the   degrees  39  E.  3.  25. 
againe ;  as  if  the  disseisor  infeoffe  A.  who  infeoffes  B.  who  in-  ^  ^-  ^'  ^g 
feoffes  C.  or  if  the  disseisor  die  seised,  and  the  land  discend  to  A. 
and  from   him  to  O.  now  are  the  degrees  past ;  and  yet  if   C. 
infeoiFe  A.  or  B.  now  is  it  brought  within  the  degrees  againe. 

If  the  disseisor  make  a  lease  for  life,  the  remainder  in  fee,  50  e.  3.  27. 
tenant  for  life  dieth,  he  in  the  remainder  is  in  the  Per,  because 
he  now  claimeth  immediately  from  the  disseisor,  and  both  these 
estates  make  but  one  degree  (2). 

Note,  there  bee  divers  other  writs  of  entrie  besides  this  writ  of  (F.  N.  B.  192.  a.) 
entrie  sur  disseisin,  whereof  Littleton  here  speakes;  as  a  writ  of 
entrie  ad  terminum  qui praeteriit,  in  casu  proviso,  in  consimili 
casu,  ad  communem  legem,  sine  assensu  capituli,  dum,  fuit  infra 
setatem,  dum  non  fuit  compos  mentis,  cui  in  vita,  sur  cui  in  vita, 
intrusion,  cessavit,  and  the  like;  and  that  which  hath  beene  said  (S  Rep. 86.) 
of  one,  may  be  applyed  to  all. 


Sect.  387. 

y^iVi)  7iote,  that  in  such  discents  which  take  away  entries,  it  behoveth 
that  a  man  die  seised  in  his  demesne  as  of  fee,  or  in  his  demesne  as 
of  fee  taile.  For  a  dying  seised  for  terme  of  life,  or  for  terme  of  another 
mans  life,  doth  never  take  away  an  entry.'*' 

IF 
&c.  added  in  L.  and  M.  and  Koh. 

(A)  parson  seems  to  be  here  inserted  for  person. 

(2)  Booth,  in  his  Real  Actions,  171.  makes  the  first  degree  to  consist  in  the 
original  wrong ;  but  sir  Henry  Finch,  262.  and  Mr.  justice  Blackstone,  vol.  3. 
ch.  10.  agree  with  sir  Edward  Coke.  Abatement,  disseisin,  escheat,  recovery, 
dower,  judgment,  and  a  third  and  every  subsequent  feoffment,  are  in  the  Post. 
Finch,  ibid.     — [Note  156.] 


239.  a.  239,  b.]        Of  Discents.       L.  3.  C.  6.  Sect.  387. 

Dier,  8  El.  2.       1  F  a  disseisor  make  a  lease  to  a  man  and  to  his  heires  during 

f  H  4  S"*'  *^^*         ^^^  ^^^^  °^  ^'  '^'  ^"'^  *^^  ^^^^^^  ^'^^^'  ^^^'"S  ^-  'S'.  this  shall  not 

17  E.  3.  48.  t'^^'^  away  the  entrie  of  the  disseisee,  because  he  that  died  seised 

II  H.  4.42.  had  but  a  freehold  only,  and  heires  in  that  case  were  added  to 

(1  Rep.  140.  b.  prevent  the  occupant,  for  the  heire  in  that  case  shall  not  have 

16  Eliz.^L'com-  ^'^  age,  as  it  was  adjudged  in  [d]  Lamb's  case  (3). 
muni  banco.  But  if  heo  in  the  reversion  disseise  his  tenant  for  life,  and 

(Ant.  41  b.)  dieth  seised,  this  discent  shall  take  away  the  entrie  of  the  tenant 

ll%ons.5S.  for  life  (4). 

F.  N.  B.  145.  M.     9  H.  7.  25.  a. 

9  H.  7.  25.  So  it  is  if  there  be  tenant  for  life,  the  remainder  in  taile,  the 

(Hob.  323.)         remainder  in  fee,  and  tenant  in  taile  disseiseth  the  tenant  for 

life  and  dieth  seised,  this  shall  take  away  the  entrie  of  the  tenant 

for  life. 

(Post.  276.  a.)  But  if  the  king's  tenant  for  life  be  disseised,  and  the  disseisor 

(Plo.  546.  a.)       (jjg   seised,  this  discent  shall  not  take  away  the  entrie  of  the 

lessee  for  life,  because  the  disseisor  had  but  a  bare  estate  of 

freehold  during  the  life  of  the  lessee,  and  Littleton  saith,  that  a 

discent  of  an  estate  for  terme  of  another  man's  life  shall  not  take 

away  an  entrie  (5). 

Temps  E.  1.  "In  his  demesne  as  o/fee."  If  an  infant  bee  disseised, 

Reliefe,i2.Dior,  and  the  disseisor  die  S^  seised,  and  after  the  infant  r339."j 
40  E  3  9^*^)9"       commeth  to  full  age,  and  the  heir  of  the  disseisor  die   L     ^-     J 
before  he  entreth,  albeit  he  died  not  seised  of  an  actuall 
seisin  (1),  but  of  a  seisin  in  law,  yet  that  dying  seised  shall 
[»]  24  E.  3. 47.    take  away  the  entrie  of  the  disseisee.     [*]  And  yet  in  jileading 
(8  Rep.  99.]        the  second  heire  shall  (as  hath  beene  said)  make  himselfe  heire 
to  the  disseisor,  and  that  land  shall  not  be  recovered  in  value  for 
the  warrantie  made  of  other  lands  by  the  first  heire ;  but  though 
the  first  heire  had  but  a  seisin  in  law,  yet  he  is  within  the  words 
of  Littleton,  for  he  was  seised  and  died  seised  in  his  demesne  as 
of  fee. 

Sect. 

(3)  See  Note  4.  page  241.  a. 

(4)  But  it  icill  not  take  awai/  the  entry  of  a  stranger)  for  as  to  him  it  is 
hut  the  estate  for  life  still,  a  fictitious  and  not  true  descendible  estate.  Lord 
Nott.  MSS.— [Note  157.] 

(5)  This  is  by  reason  of  the  king's  prerogative,  that  he  cannot  be  disseised. 
See  Hob.  322.— [Note  158.] 

(1)  See  1  Rej).  140.  tonp.  Edio.  The  eldest  son  before  entry  died  loithout 
issue,  the  youngest  will  ^^cy  two  reliefs,  for  the  death  of  his  father  and  the  death 
of  his  brother  i  for  they  both  loere  tenants  to  the  lord.  So  note,  the  death  of  a 
person  seised  of  a  seisin  in  laio,  is  a  descent  to  entitle  the  lord  to  relief. — By 
Thorp  and  Wilby,  the  grandfather  leased  for  life  and  died.  The  father  makes 
a  feoffment  of  Black  Acre  loith  warranty,  the  son  shall  not  render  in  value  the 
term  of  which  the  reversion  descends  upon  him,  because  the  father  had  only  a 
seisin  in  law.     24  £.  3.  47.     L.  Nott.  MS.— [Note  159.] 


L.  3.  C.  6.  Sect.  388.         Of  Discents.  [239.  b. 


Sect.  388. 

ALSO,  a  discent  of  a  inversion,  or  of  a  remainder,  dothnottaJce  aivay 

an  entrie  *.     So  as  in  those  cases  wJiich  take  away  entries  by  force 

of  disceiits,  it  behoveth  that  hee  dieth  seised  of  fee  and  freehold  at  the 

time  of  his  decease,  f  or  of  fee  taile  and  freehold  at  the  time  of  his  deaths 

or  otherwise  such  discent  doth  not  take  away  an  entrie. 

AND  therefore  if  a  disseisor  make  a  lease  for  yeares,  and  die 
seised  of  the  reversion,  this  discent  shall  take  away  the  entrie 
of  the  disseisee,  because  hce  died  seised  of  the  fee  and  frank- 
tenement.  Like  law  it  is  if  the  land  be  extended  upon  a  statute, 
judgement,  or  recognizance,  and  so  it  is  in  case  of  a  remainder. 

But  if  he  had  made  a  lea.se  for  life,  and  die  seised  of  the  rever- 
sion, this  discent  shall  not  take  away  the  entrie  of  the  disseisee, 
for  that  though  he  had  the  fee,  yet  he  had  not  the  frank-tene- 
ment (2).  . 

So  it  is  of  a  tenant  in  taile  mutatis  mutandis ;  and  note,  the  Vido  Sect.  302. 
law  doth  ever  give  great  respect  to  the  estate  of  freehold,  though  ^'^'^^ 
it  be  but  for  terme  of  life. 

If  a  disseisor  make  a  lease  for  terme  of  his  own  life,  and  dieth, 
this  discent  shall  not  take  away  the  entrie  of  the  disseisee  ;  for 
though  the  fee  and  franktenement  discend  to  the  heire  of  the 
disseisor,  yet  the  disseisor  died  not  seised  of  the  fee  and  frank- 
tenement  :  and  Littleton  saith,  that  unlesse  he  hath  the  fee  and 
franktenement  at  the  time  of  his  decease,  such  descent  shall  not 
take  away  the  entrie  (3). 

Sect. 

*  &c.  added  in  L.  and  M.  and  Roh.     time  of  his  death,  not  in  L.  and  M.  or 
■j"  or  of  fee  taile  and  freehold  at  the     Roh. 


(2)  The  necessity  that  there  should  be  a  tenant  to  do  the  feudal  duties,  and 
the  notoriety  of  title,  which  the  disseisor  acquired  by  being  permitted  to  con- 
tinue during  his  life  in  the  peaceable  possession  of  the  fee,  and  to  die  seised  of 
it,  are  the  grounds  upon  which  the  law  is  induced  to  defend  the  possession 
of  the  heir  of  the  disseisor  from  the  entry  of  the  disseisee,  and  to  leave  the 
disseisee  to  his  remedy  by  action.  But  when  the  disseisor  parts  with  the  free- 
hold, there  is  a  vacancy  in  the  possession ;  and  the  possession  of  the  disseisor, 
and  consequently  the  notoriety  of  it,  is  lost.  Thus  the  principles  which  apply 
to  the  descent  of  an  estate  in  possession  do  not  apply  to  the  descent  of  an 
estate  in  remainder  or  reversion  expectant  on  an  estate  of  freehold.  But  they 
apply  when  the  particular  estate  is  only  for  years ;  a  tenant  for  years  being 
considered  merely  as  the  bailiff  of  the  freeholder,  and  to  hold  the  possession 
for  him.— [Note  IGO.] 

(3)  But  suppose  the  disseisor  in  this  case  had  conveyed  the  estate  to  the  use 
of  himself  for  life,  remainder  to  the  use  of  his  first  and  other  sons  succes- 
sively in  tail,  with  the  immediate  reversion  or  remainder  to  himself  in  fee,  and 
that  he  died  without  issue  living  at  the  time  of  his  decease ;  it  seems  to  be  a 
question,  whether  he  is  to  be  considered  as  seised  in  fee  at  the  time  of  his 
decease,  so  as  to  entitle  his  wife  to  dower.     See  Cordall's  case,  Cro.  El.  315. 

Hooker 


239.  b.]  Of  Discents.        L.  3.  C.  6.  Sect.  389. 


Sect.  389. 

A  LSO,  as  it  is  said  of  discents  zohich  discend  to  the  issue  of  them 
ivhich  die  seised,  ^c.  the  same  law  is  where  they  have'7io  issue,  but 
the  lands  discend  to  the  brother,  sister,  uncle,  or  other  cousin  of  him 
which  dieth  seised  J. 


B 


Y  this  it  appeareth,  that  a  discent,  in  the  collateral  line  doth 
take  away  an  entrie,  as  well  as  in  the  lineall. 


"  Die  seised,  &c."     Here  (c&c.)  implieth  fee  simple,  or  fee 
taile. 

Sect. 

I  dec.  added  in  L.  and  M.  and  Roh. 


Hooker  v.  Hooker,  Cas.  temp.  Hardw.  13.  Duncomb  v.  Duncomb,  3  Lev.  437. 
In  the  latter  case,  between  the  estate  of  the  tenant  for  life,  and  the  limitation 
to  his  first  and  other  sons,  there  was  interposed  an  estate  to  trustees  during  the 
life  of  the  tenant  for  life,  for  preserving  the  remainder  to  the  sons.  It  was  held 
that  this  was  a  vested  estate,  and  prevented  the  wife  from  dower;  and  lord 
Hardwicke  in  Hooker  v.  Hooker  admitted  this  reasoning.  The  passage  in  the 
text  and  the  three  cases  cited  above  were  mentioned,  and  great  stress  laid  upon 
them,  in  the  case  between  the  heir  and  next  of  kin  of  the  late  lord  Thomond. 
In  that  case,  lord  Thomond  being  tenant  fn-  life,  with  remainder  to  his  first 
and  other  sons  in  tail  male,  with  the  immediate  reversion  expectant  thereupon 
to  himself  in  fee,  paid  ofi"  a  sum  of  18,000^.  charged  upon  the  estate  under  the 
trusts  of  a  term  of  years;  and  afterwards  died  intestate,  and  without  issue. 
Now  it  is  a  rule  in  equity,  that  when  a  person,  having  a  partial  estate  in  land, 
is  entitled  to  a  sum  of  money  charged  upon  it,  his  right  to  the  money  does  not 
necessarily  merge  in  the  land,  but  he  may  keep  it  as  a  subsisting  charge  on  the 
estate ;  and  in  some  cases,  if  he  makes  no  particular  disposition  of  it  in  his  life- 
time, it  goes  upon  his  decease  to  his  personal  representative.  See  Jones  v. 
Morgan,  1  Bro.  Cha.  Ca.  206.  Upon  this  ground,  it  was  contended  that  lord 
Egremont,  upon  whom  the  estate  descended  at  lord  Thomond's  decease  as  his 
heir  at  law,  took  the  estate  charged  with  the  18,000?.  for  the  benefit  of  the 
intestate's  representatives.  To  this,  it  was  answered,  that  though  lord  Thomond 
was,  at  the  time  of  his  decease,  seised  of  an  estate  for  life,  with  the  immediate 
reversion  in  fee ;  yet  as  he  had  no  children  living  at  the  time  of  his  decease, 
and  his  heir  at  law  immediately  upon  his  decease  took  the  lands  in  fee  simple 
in  possession,  by  descent,  he  was  to  be  considered  as  seised  of  an  estate  in  fee 
simple  in  possession,  and  consequently,  that  the  18,000?.  was  to  be  considered 
as  merged  in  the  inheritance.  But  lord  Chancellor  Bathurst,  before  whom  the 
cause  was  heard,  was  of  opinion,  that  lord  Thomond  was  to  be  considered  as 
seised  only  for  life,  and  that  of  course  his  lordship's  personal  representatives 
were  entitled  to  the  18,000/.  This  case,  which,  in  the  annotation  to  the 
thirteenth  edition  of  this  "Work,  was  started  from  a  full  manuscript  report  of  it, 
has  since  been  reported  by  Mr.  Ambler, — Wyndham  and  others  v.  Earl  of 
Egremont,  758. — [Note  161.] 


L.  3.  C.  6.  Sect.  390,  391 .     Of  Discents.  [240.  a. 


[^t^-] 


«^Sect.  390. 


A  LSO,  if  there  hee  lord  and  tenant^  and  the  tenant  he  disseised,  and 

the  disseisor  alien  to  another  in  fee.  and  the  alienee  die  without  issue, 

and  the  lord  enter  as  m  his  escheat :  in  this  case  the  disseisee  may  enter 

upon  the  lord,  because  the  lord  commeth  not  to  the  land  hy  discent,  but 

by  way  of  escheat  (1). 

"  rPIIE  disseisee  may  enter  upon  the  lord,  t&c."    For  albeit  the  (F.N.B.  144.  a.) 

alienee  of  the  disseisor  die  seised,  and  the  lord  by  escheat 
commeth  to  the  land  by  act  in  law,  yet  because  the  land  dis- 
cendeth  not  to  him,  the  entrie  of  the  disseisee  in  respect  of  the 
escheat  shall  not  be  taken  away.  For  a  dying  seised  and  a  dis- 
cent,  and  not  a  dying  seised  and  an  escheat,  doth  take  away  the 
entrie  :  for  (as  hath  beene  said)  the  discent  is  the  worthier  title. 
But  in  that  case,  if  the  lord  by  escheat  die  seised,  and  the  land 
discend  to  his  heire,  the  discent  shall  take  away  the  entrie  of  the 
disseisee.  So  it  is  if  the  disseisor  die  seised,  and  the  heire  of  37  II.  6. 1. 
the  disseisor  dieth  without  heire,  the  disseisee  cannot  enter  upon  ^p^^'/'opl'  u\ 
the  lord  by  escheat.  So  as  there  is  a  diversitie  as  touching  the  (Ant.'2'38.'b.") 
discent,  when  after  a  discent  cast,  the  issue  in  tail  dieth  without 
issue,  and  when  after  a  discent  cast,  the  heire  in  fee  simple  dieth 
without  heire ;  for  he  in  the  reversion,  or  remainder,  upon  a 
state  taile  claimeth  in  above  the  state  taile,  but  the  lord  by 
escheat  claimeth  in  under  the  heire  in  fee  simple. 


Sect.  391. 

A  LSO,  if  a  man  he  seised  of  certain  land  in  fee,  or  in  fee  taile,  upon 
condition  to  render  certain  rent,  or  upon  other  condition,  albeit  such 
tenant  seised  in  fee,  or  iii  fee  taile,  dieth  seised,  yet  if  the  condition  hee 
broken  in  their  lives,  or  after  their  decease,  this  shall  not  take  away  the 
entrie  of  the  feoffor  or  donor,  or  of  their  heires,for  that  the  teiiancie  is 
charged  with  the  conditio7i,  and  the  state  of  the  tenant  is  conditionall, 
in  whose  hands  soever  that  the  teyiancie  commeth,  ^'c. 


UPON  these  two  sections  it  is  to  bee  observed  a  diversitie  be- 
tweene  a  right,  for  the  which  the  law  giveth  a  remcdie  by  ac- 
tion, and  a  title,  for  the  which  the  law  giveth  no  remedie  by  action, 
but  an  entrie  only  (2).    For  example,  the  feofi'ee  upon  condition 

in 


?>?,  Ass.  11.  24. 
21  11.  6. 17. 


(1)  When  the  lord  comes  to  the  land  by  escheat,  the  law  only  casts  the  free- 
hold upon  him  for  want  of  a  tenant.  The  disseisee,  notwithstanding  the  dis- 
seisin, continues  the  rightful  tenant ;  and  as  by  his  entry  he  fills  the  posses- 
sion, the  lord's  title,  which  was  only  good  while  a  tenant  was  wanting,  must 
necessarily  be  at  an  end. — [Note  162.] 

(2)  Though,  by  the  disseisin  a  tortious  possession  is  acquired,  it  is  in  the 
present  case,  such  only  as  between  the  disseisor  and  the  disseisee,  and  does 

not 


240.  a.  240.  b.]         Of  Discents       L.  3.  C.  6.  Sect.  392. 

in  this  case  hath  a  right  to  the  land,  and  therefore  his  entrie 
may  be  taken  away,  because  hee  may  recover  his  right  by  action ; 
but  the  feoffor  or  donor  that  hath  but  a  condition,  his  title  of 
entrie  cannot  be  taken  away  by  any  disccnt,  because  he  hath  no 
remedie  by  action  to  recover  the  land,  and  therefore  if  a  discent 
should  take  away  his  entrie,  it  should  barre  him  for  ever.     And 

33  Ass.  11.  24.     the  law  is  all  one  whether  the  discent  were  before  the  condition 

(Ant.  206.)  broken,  or  after. 

Brook,  tit.  Mort-       (tt^AIso  he  that  hath  a  title  to  enter  upon  a  mort-  r34r0.1 

maine,  6.  maine  shall  not  be  barred  by  a  discent,  because  then  b. 

„,  -r,'  o"  ii'         he  should  bee   without  all  remedie.     And  so  it  is  in 

-:!  ti.  6.  17.  ,  1        1  •   1  .  .  .. 

Case  where  a  woman  hath  a  title  to  enter  causa  matrimonii  jyra- 
locuti,  no  discent  shall  take  away  her  entrie,  because  she  hath 
40  Ass.  13.  but  a  title,  and  no  remedie  by  action  (1), 


Sect.  392. 

ALSO,  if  such  tenant  upon  condition  he  disseised,  and  the  disseisor 
die  thereof  seised,  and  the  land  discend  to  the  heire  of  the  disseisor^ 
now  the  entrie  of  the  tenant  upon  condition,  who  was  disseised,  is  taken 
away.  Yet  if  the  condition  he  hroTten*,  the  feoffor  or  the  donor  tvhich 
made  the  estate  upon  condition,  or  their  heires,  may  enter,  causa  qua 
supra 

IF  a  man  be  seised  of  lands  in  fee,  and  by  his  last  will  in  writing 
deviseth  the  same  to  another  in  fee,  and  dieth,  after  whose  de- 
cease the  freehold  in  law  is  cast  upon  the  devisee,  and  the  heire, 
before  any  entrie  made  by  the  devisee,  entreth,  and  dieth  seised, 
this  discent  shall  not  take  away  the  entrie  of  the  devisee;  for  if 
the  discent,  which  is  an  act  in  law  should  take  away  his  entrie, 
the  law  should  barre  him  of  his  right,  and  leave  him  utterly  with- 
out remedie  (2).  And  so  it  is  of  him  that  entreth  for  consent  to  a 
ravishment;  and  so  it  was  resolved  in  the  case  of  Martin  Trotte  of 

London, 

*  &c.  added  in  L.  and  M.  but  not  in  Roh. 

not  affect  the  estate  of  the  feoffor  on  condition ;  the  condition  being  so  insepa- 
rably annexed  and  inherent  to  the  land,  as  to  bind  it,  in  whose  hands  soever  it 
comes.     See  Ow.  141.— [Note  163.] 

(1)  The  assertion,  that  a  woman  in  this  case  has  no  remedy  by  action,  may, 
perhaps,  be  disputed,  as  the  writ  causa  matrimonii  prcdocuti  extends  to  all  the 
degrees.  See  the  writ  in  the  Register.  Booth's  Real  Actions,  197.  and  Fitz. 
Nat.  Br.  205.— [Note  164.] 

(2)  Ace.  the  case  of  Matthewson  v.  Trott,  Owen,  141.  1  Leo.  209.  But  the 
reason  given  in  the  Commentary,  that  the  devissee,  in  this  case,  has  no  remedy 
by  action,  is  not  well  founded,  if  what  sir  Edward  Coke  observes  in  page  111.  a. 
be  true,  that  the  devisee  may  either  enter  or  have  his  writ  ex  fjravi  qmcrcla. 
Upon  this  head,  the  judges  Anderson  and  Walinesley  seem  to  differ  on  the 
case  above  cited.  Whatever  may  be  the  case  with  respect  to  a  discent,  a  fine 
levied  by  the  heir  at  law  is  a  barr  to  a  devisee  after  five  years  nonclaim. 
Ilulm  V.  Heylock,  Cro.  Car.  200.  It  is  also  a  bar  to  a  title  of  entry  for  a 
condition  broken,  or  a  right  or  title  of  entry  upon  any  other  account.  Mayor 
of  London  v.  Alford,  Cro.  Car.  575.  1  Jones,  452.  See  Mr.  Cruise's  Essay 
on  Fines,  146,  147. — [Note  165.] 


L.  3.  C.  6.  Sect.  393.     Of    Discents.  [240.  b. 

London  [?t]  Pasche  32  El.  in  Com.  Banco  ;  and  accordingly  was  [«]  Pasch. 

the  opinion  of  the  court  of  common  pleas,  lol  Pasche  1  Jac.  Req.  ^^  ^?^^  ^"  ^°™- 
m      ,u-  -I         111  1-1  I     S  .      ,  •,     „  '^     mum  Banco. 

io  this  may  be  added  as  a  like  case,  the  king  s  patentee  before  7  r.  2. 

he  enter,  &c.     Another  reason   wherefore  a  discent   shall   not  Scir.  Fac.  3. 

take  away  the  entry  of  him  that  hath  a  title  to  enter  by  force  of  ^er'^Fo^ucluie 

a  condition,  etc.  is,  for  that  the  condition  remains  in  the  same  [oYpa° ch.  iTac. 

essence  that  it  was  in  at  the  time  of  the  creation  of  it,  and  Regis  in  Com-  ' 

cannot  be  divested  or  put  out  of  possession,  as  lands  and  tene-  ™^°^  Banco. 

ments  may  (3). 


Sect.  393. 

ALSO,  if  a  disseisor  die  seised,  ^c.  and  his  heire  enter,  ^c.  wlio  en- 
doiveth  the  wife  of  the  disseisor  of  the  third  imrt  of  the  land,  Sfc.  in 
this  case  as  to  this  part  ivhich  is  assigned  to  thetvife  in  doiver,  presently 
after  the  wife  entreth,  and  hath  the  possession  of  the  same  third  part,  the 
disseisee  may  lawfully  enter  upon  the  possession  of  the  wife  into  the  same 
third  part.  And  the  reason  is,  for  that  when  the  wife  hath  her  dower, 
she  shall  be  adjudged  in  immediately  by  her  husband,  and  not  by  the 
heire  (1);  and  so  as  to  the  freehold  of  the  same  third  part,  the  descent 
is  defeated"^.  And  so  you  may  see,  that  before  the  endowment  the  dis- 
seisee could  not  enter  into  any  part,  ^c.  and  after  the  endowment  he 
may  enter -\  upon  the  wife,  ^c.  but  yet  he  cannot  enter  upon  the  other  two 
parts  ivhich  the  heir  of  the  disseisor  hath  by  the  discent  X  (2). 

*  <&c.  added  in  L.  and  M.   and  Roh.         l&c.   added  in  L.  and  M.   and 
f  npon  the  rcife,  not  in   L.   and  M.     Roh. 
or  Roh. 


(3)  Hainsworth  v.  Pretty,  Cro.  Eliz.  919.  Thomas  devised  to  Richard,  his 
eldest  son,  in  fee,  upon  condition  that  he  should  pay  to  his  other  children  the 
sums  appointed  to  them  according  to  the  intent  of  his  will;  and  on  refusal,  that 
his  younger  sons  and  daughter  sshould  have  it  to  them  and  their  heirs. 
Richard  refused  payment  and  died ;  and  Thomas  his  son,  entered,  and  the 
younger  son  and  daughters  entered  upon  him  :  it  was  contended,  that  the 
descent  upon  Thomas  took  away  the  entry  of  the  younger  sons  and  daughters  : 
but  the  court  held  the  contrary.  For  it  was  not  as  a  descent  to  a  stranger  after 
a  devise,  before  the  entry  of  the  devisee,  which,  perhaps,  might  take  away 
their  entry,  becase  it  was  not  then  an  immediate  devise;  but  it  was  quasi  a 
devise  upon  a  limitation,  or  upon  a  condition  broken,  which  no  descent  should 
take  away  or  prejudice. — [Note  16G.] 

(1)  The  dowress  holds  of  the  heir;  but  by  the  institution  of  the  law,  she 
is  in  of  the  estate  of  her  husband ;  so  that  after  the  heir's  assignment,  she 
holds  by  an  infeudation  from  the  immediate  death  of  her  husband.  Hence  it 
is  that  dower  defeats  descent,  because  the  lands  cannot  be  said  to  descend  as 
demesne,  which  are  in  tenure ;  and  the  assignment  of  dower  being  in  the  nature 
of  inieudation,  and  taking  place  immediately  from  the  death  of  the  husband, 
there  are  only  two  thirds  which  descended  as  demesne.  Gilb.  on  Dower,  395. 
—See  ant.  31.  b.— [Note  1G7.] 

(2)  The  doctrine  contained  111  this  section  seems  to  apply  to  the  case  of  a 
recovery  suifered  by  the  heir,  befi.>re  the  assignment  of  dower. — [Note  168.] 


240.  b.  241.  a.J         Of  Discents.     L.  3.  C.  6.  Sect.  393. 

"  JThJE  seised,  dx."  viz.  in  fee  simple  or  in  fee  tayle. 

"  And  his  he  ire   enter,  &c."     So  as  he  hath  an  actuall  fee 
simple. 

''  Of  (he  3.  2^(t^'f  of  ih<^  land,  &c."  id  est  in  severaltie. 
By  this  action  it  apjieareth,  that  an  entrie  being  taken  away  by 
the  discent,  is  revived  by  the  endowment,  albeit  the  tenant  in 
dower  shall  have  it  but  for  her  life.     And  the  cause  is. 
[a]  8  E.  2.  for  that  although  the  heireentred,  yet  O^when  the  wife  rQ-il."] 

Entrie,  75.  is  endowed  she  shall   not  be  in  by  the  heire,  [«]  but  |_     a.     J 

if  ^"  ^"   "1         immediately  by  her  husband  being  the  disseisor,  who  is 
522!       '        io  fo''  Ji^r  life  by  a  title  paramount  the  dying  seised  and  discent, 
Entrie,  66.  and  therefore  in  judgment  of  law,  the  discent  as  to  the  freehold, 

24  E.  3.  32.  40.    j^^  j  ^^g  possession  which   the   heire   had  is  taken  away  by  the 
43  E.*3.  32."  "     endowment ;  for  that  the  law  adjudgeth  no  meane   seisin  be- 
45  E.  3.  9.  b.       tweene  the  husband  and  the  wife. 
11 H.  4. 11. 

7  H.  6.  3.     10  E.  3.  27,  28.     36  H.  6.     Dower,  SO. 


(F.  N.  B.  136.) 


31  E.  1.  If  there  bee  lord,  mesne  and  tenant,  the  mesne  doth  grant  to 

^^''^^®'^^^- ^^^  ^  the  tenant  to  acquite  him  against  the  lord  and  his  heires,  the  lord 
dies,  the  wife  hath  the  seigniories  assigned  to  her  for  her  dower, 
and  distraines  the  tenant :  albeit  the  grant  was  to  acquite  him 
against  the  lord  and  his  heirs  only,  yet  because  shee  continued 
the  estate  of  her  husband,  and  the  reversion  remained  in  the 
heire,  this  grant  of  acqaitall  did  extend  to  the  wife,  which  is  a 
notable  case. 

If  after  the  dying  seised  of  the  disseisor,  the  disseisee  abate, 
against  whom  the  wife  of  the  disseisor  recover  by  confession  in  a 
writ  of  dower,  in  that  case,  though  the  discent  be  avoided  as 
Littleton  here  saith,  yet  the  disseisee  shall  not  enter  upon  the 
tenant  in  dower,  because  the  recoverie  was  against  himselfe  ;  but 
if  he  had  assigned  dower  to  her  in  pais,  some  say  he  should 
enter  upon  her  (3). 
10  E   3  26.  -^  ^^^  makes  a  gift  in  taile  reserving  twentie  shillings  rent, 

(7  Rep.  9.  a.)  and  dies,  the  donee  takes  wife,  and  dieth  without  issue,  the  heire 
of  the  donor  entreth,  and  endoweth  the  wife,  shee  is  so  in  of  the 
estate  of  her  husband,  that  albeit  the  estate  taile  be  spent,  and  the 
rent  reserved  thereupon  determined,  yet  after  she  be  endowed, 
she  shall  be  attendant  to  the  heire  in  respect  of  the  said  rent. 
And  so  it  is  of  lord  and  tenant,  the  wife  that  is  endowed  shall  be 
attendant  for  the  due  services;  but  if  any  service  be  encroached, 
albeit  that  encroachment  shall  binde  the  heire,  yet  the  wife  shall 
be  contributorie  but  for  the  services  of  right  due  (4). 

''So 


(3)  So  note,  though  the  disseisee,  being  an  abater,  did  an  act  to  which  he  teas 
compellable,  yet  it  is  not  as  good  as  if  he  had  been  actually  compelled.  Supra, 
35.     Lord  Nott.  MS.— [Note  169.] 

(4)  Sir  Edward  Coke,  in  this  passage,  and  in  a  former  part  of  his  commen- 
tary, puts  several  cases  on  the  continuance  of  the  wife's  dower  after  the  fee 
chart^ed  with  it  is  determined.  Perhaps  the  following  distinctions  and  obser- 
vations will  assist  in  clearing  up  the  complex  and  abstruse  points  of  learning 
in  which  this  question  is  involved.  I.  In  those  cases  where  the  fee  is  evicted 
by  title  paramount,  the  dower  and  curtesy  necessarily  cease  upon  the  eviction. 
Such  is  the  case  put  by  Littleton  in  the  section  before  us.  II.  When  the  donor 

enters 


L.  3.  C.  6.  Sect.  393.         Of  Discents.  [241.  a. 

"  So  you  may  see,  that  hefore  the  endoioment  the  disseisee 
could  not  enter,  and  after  the  endoicment  he  may  enter,  &c."  The 
like  hath  beene  said  before  in  this  chapter,  Sect.  386,  where  the 
entrie  of  the  disseisee  may  be  taken  away  for  a  time,  and  by 
matter  ex  j^ost  facto  revived  againe. 

Nota, 

enters  for  breach  of  condition ;  as  his  entry  absolutely  defeats  the  estate  of 
the  tenant  on  condition,  so  it  defeats  his  wife's  right  of  dower,  and  the  hus- 
band's right  of  courtesy,  and  all  other  charges  brought  upon  the  estate,  either 
by  the  donee's  own  act,  or  by  act  of  law.  See  note  2.  fo.  202.  b.  III.  If  a 
person  seised  in  fee  tail,  or  any  other  determinable  fee,  conveys  in  fee,  the 
wife's  right  of  dower,  and  the  husband's  courtesy,  can  only  be  commensurate 
with  the  estate  of  the  grantee,  and  must  necessarily  cease  whenever  that  estate 
ceases.  See  10  Kep.  97.  b.  98.  a.  IV.  As  to  estates  in  fee  simple  conditional 
at  the  common  law,  and  estates  tail  under  the  statute  de  don  is  ; — the  wife  was 
entitled  to  her  dower,  and  the  husband  to  his  courtesy,  out  of  them,  after  the 
failure  of  the  issues.  But  it  may  be  observed,  that  though  it  is  now  difficult 
to  avoid  considering  estates  in  fee  simple  conditional  in  any  other  light  than 
as  estates  originally  granted  to  the  donee,  and  to  the  heirs  general,  or  to  some 
particular  heirs  of  his  body;  and  the  estate  of  the  donor,  as  that  of  a  rever- 
sioner expectant  on  the  failure  of  these  heirs ;  yet  this  restriction  to  particular 
heirs,  and  exclusion  of  others,  is  understood  to  be  produced,  not  by  any  limi- 
tation of  persons  introduced  into  the  grant,  but  by  a  condition  supposed  to  be 
annexed  to  it,  that  if  there  were  no  such  heirs,  or  being  such,  if  they  afterwards 
failed,  and  the  donee  did  not  alien  the  estate,  it  should  be  lawful  for  the  donor 
and  his  heirs  to  enter. — This  entry,  therefore,  was  not  an  entry  upon  the  natu- 
ral expiration  of  a  prcvioiis  estate,  but  for  a  condition  broken ;  in  which  case, 
as  in  all  others  where  entry  is  made  for  breach  of  a  condition,  the  right  of  the 
wife  to  her  dower,  and  the  husband  to  his  courtesy,  if  the  general  rule  were 
adhered  to,  would  be  defeated.  But  for  reasons  now  rather  to  be  guessed  than 
demonstrated,  this  case  was  made  an  exception  from  the  general  rule.  So  with 
respect  to  the  right  of  the  wife  of  tenant  in  tail  to  her  dower,  and  the  husband 
to  hi*  courtesy,  after  the  failure  of  the  issues  in  tail;  the  statute  c/e  rfojw's 
introduced  no  new  estate,  but  only  preserved  estates  limited  as  conditional 
fees  to  the  issues  inheritable  under  them,  by  preventing  the  tenants  of  such 
conditional  fees  from  alienating  or  disposing  of  them ;  and  as  they  preserved 
the  estates,  so  they  preserved  the  incidents  belonging  to  them,  and,  among 
others,  the  right  of  the  wife  to  her  dower,  and  the  husband  to  his  courtesy. 
V.  If  a  person  makes  a  gift  in  tail,  reserving  rent;  after  failure  of  the  issues 
in  tail,  the  rent  will  not  be  continued,  either  for  the  dower  of  the  wife,  or  the 
courtesy  of  the  husband.  Plo.  Com.  155.  VI.  As  to  limited  fees; — by 
which,  in  this  place,  are  to  be  understood  those  fees  which  are  qualified,  not 
because  the  estate  of  the  grantor  is  limited — (such  as  those  which  are  classed 
under  the  third  distinction) — but  those  which  being  created  by  a  person  seised 
in  fee  simple,  are  by  the  original  grant  by  which  they  are  created,  only  to 
continue  till  a  certain  event;  as  a  grant  to  A.  and  his  heirs,  lords  of  the 
manor  of  Dale,  or  to  A.  and  his  heirs,  while  there  shall  be  heirs  of  the  body 
of  B. : — or  those  fees  which  are  originally  devised  or  limited  in  words  importing 
a  fee  simple  or  fee  tail  absolute  and  unconditional,  but  which,  by  subsequent 
words,  are  made  determinable  upon  some  particular  event  (see  Note  1.  203.) : 
— as  to  fees  of  this  description,  it  should  seem  by  the  case  cited  in  the  Note 
to  F.  N.  B.  149  G-.  and  the  cases  of  Flavell  v.  Ventrice,  1  Roll.  Abr.  676.  and 
Sammes  and  Payne's  case,  1  Leo.  167.  1  And.  184.  8  Rep.  34.  Goulds.  81.  that 
where  the  fee,  in  its  original  creation,  is  only  to  continue  to  a  certain  period,  the 
wife  is  feo  hold  her  dower,  and  the  husband  his  courtesy,  after  the  expiration 
of  the  period  to  which  the  fee  charged  with  the  dower  or  courtesy  is  to  con- 
tinue; 


241.  a.  241.  b.J       Of  Discents.       L.  3.  C.  6.  Sect.  394. 

Vide  Sect.  302.  Nota,  albeit  the  disseisor  after  a  discent  taketh  to  him  but  an 
388.  25  E.  3.  48.  estate  for  life,  yet  when  the  disseisee  doth  enter  upon  him,  he 
7d    f  ^- 1^  u '      shall  thereby  devest  the  reversion,  for  the  estate  of  freehold  is 

(Post.  3a4.  b.  .'  .Ill  1      1  c  1  •        i- 

Dyer,  31.  b.)  that  whereupon  a  prccctpc  doth  lye,  and  therefore  the  entrie  oi 
(1  Roll.  Abr.  the  disseisee  is  as  available  in  law,  as  if  he  had  recovered  it  in 
658.  Ant.  bo.  b.)  ^  prcecipe.  And  so  it  is  if  a  disseisor  make  a  lease  for  life,  and 
grant  the  reversion  to  the  king,  the  entrie  of  the  disseisee  upon 
the  tenant  for  life  shall  devest  the  reversion  out  of  the  king  in 
the  same  manner  as  if  the  disseisee  had  recovered  the  lands 
against  the  tenant  for  life  in  a  pracipe. 


m^  Sect.  394.  [^t^'] 


A  LSO,  if  a  looman  he  seised  of  land  in  fee^  whereof  1  have  right 

and  title  to  enter,  if  the  woman  take  husband  and  have  issue  hetweene 

them,  and  after  the  wife  die  seised,  and  after  the  husband  die,  and  the  issue 

enter,  ^-c.  in  this  case  I  may  enter  upon  the  possession  of  the  issue  (en  cest 

case 


tinue ;  but  that  where  the  fee  is  originally  devised  in  words  importing  a  fee 
simple,  or  fee  taile  absolute  and  unconditional,  but  by  subsequent  words  is 
made  determinable  upon  some  particular  event;  there,  if  that  particular  event 
happens,  the  wife's  dower  and  the  husband's  courtesy  cease  with  the  estate  to 
which  it  is  annexed.  Such  appears  to  be  the  distinction  established  by  the 
foregoing  cases.  But  a  diiferent  doctrine  as  to  cases  of  the  latter  description, 
seems  to  have  been  laid  down  in  the  case  of  Buckworth  v.  Thirkell,  determined 
in  Trinity  term,  25  Geo.  3,  in  the  court  of  king's  bench.  There  Joseph  Sut- 
ton the  testator  devised  his  estates  to  trustees,  upon  trust  to  pay  the  rents  and 
profits  of  them  for  the  maintenance  and  education  of  Mary  Barrs,  till  she 
arrived  at  twenty-one,  or  was  married:  "And  from  and  after  the  said  Mary 
''  Barrs  should  have  attained  her  age  of  twenty-one  years,  or  should  be  married, 
"  he  gave  and  devised  all  the  said  lands  and  premises  to  the  said  Mary  Barrs, 
"  her  heirs  and  assigns  for  ever;  but  in  case  the  said  Mary  Barrs  should  hap- 
"  pen  to  die  before  she  arrived  at  the  age  of  twenty-one  years,  and  without 
"  having  issue  of  her  body  lawfully  begotten ;  then,  from  and  after  the  decease 
"  of  the  said  Mary  Barrs  without  issue,  as  aforesaid,  he  gave  and  devised  all 
"  his  said  estates  unto  his  grandson  "Walter  for  life,"  with  several  remainders 
over.  Mary  Barrs  married  Solomon  Hansard,  and  had  issue  a  son,  who  died 
in  her  life ;  and  afterwai'ds  Mary  Barrs  died  under  twenty-one.  In  this  case, 
the  court  were  unanimously  of  opinion,  that  on  the  decease  of  Mary  Barrs,  her 
husband  became  entitled  by  the  courtesy  to  the  estates  for  his  life,  and  that, 
subject  thereto,  the  devisees  over  became  entitled  to  them  by  way  of  executory 
devise. —  Collect.  Jurid.  vol.  1.  332.  3  Bos.  and  Pull.  652.  The  ground  upon 
which  the  court  appears  to  have  formed  their  opinion  on  it,  is,  an  analogy  they 
supposed  it  to  bear  to  the  case  of  estates  in  fee  simple  conditional,  and  estates 
tail ;  in  both  of  which  dower  and  courtesy  continue  after  failure  of  the  issues ; 
and  in  both  of  which  the  wife's  being  seised  of  a  fee,  to  which  the  issue  might 
by  possibility  inherit,  entitles  the  husband  to  courtesy. — On  the  subject  dis- 
cussed in  this  note  much  useful  learning  will  be  found  in  Goodhill  v.  Brigham, 
1  Bos.  and  Pull.  192.  Doe  ex  dcm.  Andrew?'.  Hutton,  3  Bos.  and  Pull.  643. 
Doe  ex  drm.  Willis  v.  Martin,  4  Durn.  and  East,  39.  and  Maundrell  v.  Maun- 
drell,  7  Yes.  jun.  567.     10  Yes.  jun.  246.— [Note  170.] 


L.  3.  C.  6.  Sect.  394.      Of  Discents.  [241.  b. 

case  jeo*  poy  enter  sur  le  possession  Tissue),  for  that  the  issue  comes 
not  to  the  larids  immediately  hy  discent  after  the  death  of  the  mother,  ^-c 
'\hut  by  the  death  of  the  father  (1). 

Contrarium  tenetur  P.  9  H.  7.  per  tout  le  court,  &  M.  37  H.  6. 

"  TN  this  case  I  may  enter  upon  the  jjossession  of  the  issue,  &c."  Vido  9  H.  7.  24. 
For  here  was  but  a  discent  of  a  reversion  at  the  time  of  the  ^g^  ^efwe*^'  ^ 
dying  seised,  for  the  estate  of   the  tenant  by  the  eurtesie  had  the  chapter 
commencement  by  the  having  of  issue,  and  is  consummate  by  the  of  Homage. 
death  of  the  wife,  so  as  the  fee  and  franktenement  did  not  after  (^  ^°P-  '^'*'-  ^'^ 
the  decease  of  the  wife  descend  to  the  heire,  and  albeit  the  tenant 
by  the  courtesie  dieth  afterwards,  and  that  the  franktenement  is 
cast  upon  the  heire,  so  as  now  he  hath  the  fee  and  franktenement 
by  discent,  yet  because  the  heire  came  not  to  the  fee  and  frank- 
tenement at  once,  immediately  after  the  decease  of  the  wife,  such 
a  mediate  discent  shall  not  take  away  the  entrie  of  the  disseisee. 
On  the  other  side,  an  immediate  discent  may  take  away  an  entrie 
for  a  time,  and  mediately  may  be  avoided  by  matter  ex  j^ost  facto, 
as  hath  beene  said.     But  if  a  dying  seised  taketh  not  away  the 
entrie  of  him  that  right  hath  at  the  time  of  the  discent,  it  shall 
not  by  any  matter  ex  post  facto  take  away  his  entrie. 

If  a  disseisor  die  without  heire  (A)  his  wife  priveraent  enseint 
with  an  issue,  and  after  the  issue  is  borne,  who  entreth  into  the 
land,  he  hath  the  land  by  discent,  and  yet  thereby  the  entrie  of 
the  disseisee  shall  not  be  taken  away,  because,  as  Littleton  here 
saith,  the  issue  commeth  not  to  the  lands  immediately  by  discent 
after  the  decease  of  the  father. 

And  so  it  is  if  a  disseisor  make  a  gift  in  taile,  the  remainder 
in  fee,  and  the  donee  dieth  without  issue,  leaving  his  wife  prive- 
ment  enseint  with  a  sonne,  and  he  in  the  remainder  enters,  and 
after  the  sonne  is  borne,  who  entreth  into  the  land,  this  discent 
shall  not  take  away  the  entrie  of  the  disseisee,  cattsd  qud  supra. 

"  Contrarium  tenetur,  &-r."  This  is  an  addition,  and  therefore 
to  be  passed  over.  And  at  this  day,  this  case  of  Littleton  is 
holden  for  cleere  law. 

Sect. 

*  poy  not  in  L.  and  M.  or  Roh.  the  note  that  follows,  not  in  L.  and  M. 

f  but  by  the  death  of  the  father,  and     or  Roh. 

(A)  heire  seems  to  he  here  inserted/or  issue.  See  Mr.  Ritso's  Intr.  p.  119. 

(1)  Conformably  to  this,  it  was  held  by  lord  Holt  in  the  case  of  Carter  v. 
Tash,  1  Salk.  241.  that  a  descent,  which  tolls  entry,  ought  to  be  an  immediate 
descent  ;^nd  therefore  if  a  feme  disseisorcss  take  husband,  and  hath  issue  and 
dies,  and  after  the  husband  dies,  the  descent  to  the  issue  does  not  take  away 
entry,  because  the  interposition  of  tenant  by  the  curtesy  does  impede  it ;  and 
because  coverture,  to  avoid  a  descent,  ought  to  be  continual  from  the  time  of 
the  disseisin  to  the  descent ;  for,  if  a  feme  be  sole  at  the  time  of  the  disseisin, 
or  of  the  descent,  or  any  time  intermediate,  her  entry  is  not  preserved,  because 
she  had  an  opportunity  to  enter  and  prevent  the  descent :  as  if  a  feme  covert 
is  a  disseisee,  and  after  her  husband  dies  she  takes  a  second  husband,  and  then 
the  descent  happens,  this  descent  shall  take  away  the  entry  of  the  feme  :  and 
upon  this  last  point  the  plaintiff  in  that  cat-  was  nonsuited" — [Note  171.1 

Vol.  II.— 18 


241.  b.  242.  a.J     Of  Discents.     L.  3.  C.  6.  Sect.  395-96. 


(Ante,  238.  b.)  SeCt.     395. 

jj^LSO,  if  a  disseisor  enfeoff e  his  father  in  fee,  and  the  father  die, 
seised  of  such  estate,  hy  which  the  land  descend  to  the  disseisor,  as 
Sonne  and  heire  (si  un  disseisor  enfeoffason  pier  en  fee,  etle  pier  morust 
de  tiel  estate  seisie,  per  que  les  tenements  discendont  a  le  disseisor,* 
come  fits  et  heire),  ^c.  in  this  case  the  disseisee  may  well  enter 
upon  the  disseisor,  notwithstanding  the  ]^^  discent,  for  that  V'24zQ.~l 
as  to  the  disseisin,  the  disseisor  shall  be  adjudged  in  but  as  a  L  ^-  J 
disseisor,  notwithstanding  the  discent,  ||  quia  particeps  criminis  (1). 


OF  this  sufl&cient  hath  beene  said  before  in  this  chapter,  Sect. 
386.     And  regularly  it  is  true,  that  albeit  a  discent  be  cast, 


]5  E.  4.  23.  a. 

11  E.  4.  2. 

18  E.  4.  25.  a.  ,    ,  .         „     ,        ■,-       •  -r-     i       t       • 

33  H.  6.  5.  b.      ^^^  *h6  entrie  ot  the   disseisee  taken  away,  yet  it  the  disseisor 

34  H.  6. 11.  commeth  to  the  land  againe,  either  by  discent,  or  purchase  of 
24  H  s  ^  Q  ^°y  estate  or  (B)  freehold,  which  is  implyed  in  the  (c&c.)  the 
18  h!  s!  5!  '  disseisee  may  enter  upon  him,  or  have  his  assise  against  him,  as 
5  H.  7.  if  no  discent  or  meane  conveyance  had  beene,  quia  particeps 

(Post,    Sect.  409.) 

Sect.  396. 

ALSO,  if  a  man  seised  of  certaine  land  in  fee  having  issue  two  sons, 
and  die  seised,  and  the  younger  sonne  enter  by  abatement  into  the 
latid,  and  hath  issue,  and  dieth  seised  thereof,  and  the  land  descend  to 
his  issue,  and  the  issue  enters  into  the  land:  in  this  case  the  eldest 
Sonne,  or  his  heire,  may  enter  by  the  law  upon  the  issue  of  the  younger 
son,  7iotwithstanding  the  discent,  because  that  when  the  younger  son 
abated  into  the  land  after  the  death  of  his  father,  before  any  entrie  made 
by  the  eldest  sonne  (devant  ascun  entrie  per  le  fits  eigne  f  fait),  the  law 
intend  that  hee  entred  claiming  as  heire  to  his  father.  And  for  that 
the  eldest  sonne  claimes  by  the  same  title,  that  is  to  say,  as  heire  to  his 
father,  hee  and  his  heires  may  enter  upon  the  issue  of  the  younger  son  (il  et 
ses  heires  poient  enter  sur  Tissue  de  puisne  %  fits),  notioithstanding  the 

discent 

*  ent  added  in  L.  and  M.  ffait — not  in  L.  and  31. 

\\&c.  added:    quia  particeps  cri-  J  fits — frcre,  L.  and  M.  and  Rah. 

minis,  not  in  L.  and  M. 

» 

(B)  Shouldit  not  be  of  instead  of  "or"?     See  Jfr.  Ritso'a  Tntr.p.  119.    ^ 

(1)  For  when  the  disseisor  enfeoffs  the  father,  it  is  presumed  to  be  done  in 
order  afterwards  to  come  in  by  discent,  and  the  act  of  law  shall  not  give  sanc- 
tion to  the  wrong  of  the  party;  nor  shall  any  man  by  his  own  wrong,  however 
cunningly  contrived,  give  to  himself  a  right;  for  when  the  heir  by  the 
descent  gains  a  jus  possesdonis,  he  is  supposed  innocent  of  the  wrong  of  his 
ancestor,  but  here  he  is  partner  of  his  guilt.  See  Gilb.  Ten.  27,  28. — 
£Note  172.] 


L.  3.  C.  6.  Sect.  397.  Of  Discents.  [242.  a. 

discent,  <^c-  because  they  claime  hy  the  same  title.  And  in  the  same 
manner  it  shall  he,  if  there  were  more  discents  from  one  issue  to  another 
issue  of  the  younger  sonne  (1). 


Sect.  397. 

^  UT  in  this  case,  if  the  father  were  seised  of  certaine  lands  in  fee,  and 
hath  issue  two  sons,  and  die,  and  the  eldest  sonne  enter  (et  I'eigne 
*  fits  enter),  and  is  seised,  ^c.  and  after  the  younger  brother  disseiseth 
him,  by  which  disseisin  he  is  seised  in  fee,  and  hath  issue,  and  of  his 
estate  dieth  seised,  then  the  elder  brother  cannot  enter,  but  is  put  to  his 
■writ  of  entrie  sui'  disseisin,  &c.  §  to  recover  the  land.  And  the  cause 
is,  for  that  the  youngest  brother  commeth  to  the  lands  by  wrongful  dis- 
seisin done  to  his  elder  brother,  and  for  this  wrong  the  law  cannot  intend 
that  he  claimeth  as  heire  to  his  father,  no  more  than  if  a  stranger  had 
disseised  the  elder  brother  which  had  no  title  (Et  la  cause  est,  pur  ceo 
que  le  puisne  frere  vient  a  les  tenements  per  tortious  disseisin  fait  a 
son  eigne  frere,  et  per  el  tort  la  ley  ne  poit  entender  que  il  claime 
come  heire  a  son  pier,  nient  pluis  que  un  estrange  person  que  est  dis- 
seisie  I'eigne  frere  J  que  n'avoit  ascun  title),  S^c.  And  so  you  may  see 
the  diversitie,  lohere  the  younger  brother  entreth  after  the  death  of  the 
father  before  any  entrie  made  by  the  elder  brotlier  in  this  case,  \\  and 
where  the  elder  brother  etiters  after  the  death  of  his  father,  and  after 
is  disseised  by  the  younger  brother,  lohere  the  younger  after  dieth 
seised.^; 

"  TN  this  case  the  eldest  sonne,  c&c.   may  enter  upon  the  issue 

of  the  younger  son,  cHrc."  And  the  reason  hereof  is,  for  (Piow.  306.  a.) 
that  the  law  intendcth  the  youngest  sonne  entred  claiming  the 
land  as  heire  to  his  father,  and  because  the  eldest  sonne  claimeth 
also  by  the  same  title,  viz.  as  heire  to  his  father,  therefore  hee 
and  his  heires  may  enter  upon  the  sccoude  sonne  and  his  heires, 
in  respect  of  the  privitie  of  the  bloud  betweene  them,  and  of  the 
same  claime  by  one  title,  albeit  the  youngest  son  gained  a  fee 
simple  by  his  entrie :  for  Littleton  here  calleth  it  an  abatement, 
which  proveth  the  gaining  of  a  fee  simple. 

And  it  is  to  be  observed,  that  assisa  mortis  aniecessoris  non  Bract,  lib.  4. 
tenet  inter  conjunctas  personas  sicut  fratres  et  sorores,  &c.  for  fol.  261.  282, 
these  are  privie  in  bloud,  but  it  lyeth  against  strangers,  and  f^f'is^Ts'?"' 
then  damages  are  to  be  recovered  against  a  stranger,  but  not  Ficta,  lib.  5.' 
against  his  brother.  cap.  l,  2,  Ac. 

20  E.  3. 
Darr.  present.  13.     12  H.  3.  Mord.  pi.  iiltim.    13  E.  1.  Mord.  47.    29  A-BS. 
11.  ¥.  N.  li.  196.  b.     (8  Hep.  42.)     (Post.  271.  a.) 

Lands 

*  fits — frere,  L.  and  M.  and  Roh.  ||  &c.  added  in  L.  and  M.  and  Roh. 

§  d'c.  not  in  L.  and  M.  or  Roh.  \  &c.  added  in  L.  and  M.  and  Roh. 

I  frere,  not  in  L.  and  M.  or  Roh. 


(1)  When  a  younger  brother  enters  in  this  case,  he  does  not  enter  to  get  a 
possession  distinct  from  that  of  the  elder  brother,  but  to  preserve  the  posses- 
sion in  the  family,  that  nobody  else  abates.     Gilb.  Ten.  28. — [Note  173.] 


2i2.  a.  242.  b.  243.  a.]  Of  Discents.  L.  3.  C.  6.  Sect.  397 


Paseh.  3  E.  3. 
Coram  Kego 
Kane,  in  The- 
saur. 


SE.  2.  Ass.  380. 
40  E.  3.  24.  b. 

19  Ass.  24. 


Vid.  Brooke,  tit. 
Entrie,  27. 


(Roll.  Abr.  628, 
629.) 


(4  Rep.  58.) 


(1  Roll.  Abr. 
629.  Ant.  15.  a. 


22  E.  4.  4. 
(F.  N.  B.  34. 
Ant.  186.  b.) 


Doctor  &  Stud, 
cap.  30.fol.117, 


Lands  were  given  to  the  husband  and  wife,  and  to  the  heires 
of  their  two  bodies,  they  had  issue  a  daughter,  the  wife  died,  the 
husband  had  issue  by  another  wife  four  sons  and  died, 
the  eldest  sonne  ^iir  abated  and  died  seised,  this  dis-   r243.1 
cent  did  take  away  the  entrie  of  the  daughters,  because   L    ^-      J 
they  claimed  not  by  one  title.     And  in  ancient  bookes 
the  eldest  sonne  is  called  Jiseres  jjrojmiquus,  and  the  younger 
Sonne  hseres  remotus.     And  albeit  the  eldest  sonne  hath  issue 
and  dieth,  and  that  after  his  decease  the  youngest  son  or  his 
heir  entreth,  and  many  discents  he  cast  in  his  line,  yet  may  the 
heires  of  the  eldest  sonne  enter  in  respect  of  the  privitie  of  the 
bloud,  and  of  the  same  claime  by  one  title;  but  if  the  youngest 
sonne  make  a  feoffement  in  fee,  and  the  feoffee  die  seised,  that 
discent  shall  take  away  the  entrie  of  the  eldest,  in  respect  that 
the  privitie  of  the  bloud  faileth.     And  admit  that  the  youngest 
sonne  be  of  the  half  bloud  to  his  brother,  yet  he  is  of  the  whole 
bloud  to  his  father,  and  therefore  if  he  entreth  by  abatement, 
and  dieth  seised,  it  shall  not  barre  his  elder  brother  of  his  entrie. 
But  if  the  eldest  sonne  entreth,  andgaineth  anactuall  possession 
and  seisin,  then  the  entrie  of  the  youngest  is  a  disseisin.     And 
then  a  dying  seised  shall  take  away  the  entrie  of  the  eldest,  for 
posscsst'o  terrse  must  be  vacua  when  the  youngest  sonne  enters 
by  abatement,  as  Littleton  saith,  because  he  hath  more  colour 
in  that  case  to  claime,  as  heire  to  his  father,  who  last  was  actu- 
ally seised.     Therefore  if  after  the   decease  of  the  father,  an 
estranger  doth  first  enter  and  abate,  upon  whom  the  youngest 
sonne  entreth  and  disseise  him,  and  die  seised,  this  discent  shall 
binde  the  eldest,  for  he  entered  by  disseisin,  and  not  by  abate- 
ment. 

If  a  man  bee  seised  of  lands  of  the  nature  of  Jg^"  r34:3.1 
burgh  English,  and  hath  issue  two  sonnes  and  die,  and  L  ^-  J 
the  eldest  sonne  before  any  entrie  made  by  the  young- 
est, entreth  into  the  land  by  abatement,  and  dieth  seised,  this  shall 
not  take  away  the  entrie  of  the  youngest  brother.  Et  sic  dc 
similibus.  And  these  and  the  like  cases  are  all  within  the  reason 
and  rule  of  our  author.  And  where  our  author  speaketh  only 
of  an  abatement,  so  it  is  not  (A)  an  intrusion;  for  if  the  father 
make  a  lease  for  life,  and  hath  issue  two  sonnes  and  dieth,  and 
the  tenant  for  life  dieth,  and  the  youngest  sonne  intrude,  and  die 
seised,  this  discent  shall  not  take  away  the  entrie  of  the  eldest. 
But  if  the  father  had  made  a  lease  for  yeares  it  had  beene  other- 
wise, for  that  the  possession  of  the  lessee  for  yeares  maketh  an 
actuall  freehold  in  the  eldest  sonne.  And  it  is  to  be  observed, 
that  the  reason  of  Littleton  in  this  case  (for  that  both  the  bre- 
thren hold  by  one  title)  holdeth  also  in  many  other  cases. 

If  two  coparceners  make  partition  to  present  by  turne,  and 
one  of  them  usurpe  in  the  turne  of  the  other,  this  usurpation 
shall  not  put  the  other  out  of  possession,  because  they  claime  by 
one  title. 

If  two  coparceners  be,  and  they  severally  present  to  the  ordi- 
narie,  yet  the  church  is  not  litigious,  because  they  claime  all  by 
one  title  (1). 

If 


(A)   The  text  should  he  read,  it  seems,  as  if  lord  Coke  had  used  the  word  of  instead  of 
'not."     See  Mr.  Bitao's  Intr.  p.  119. 

(1)  Acc.  Dig.  p.  1.  c.  3.— See  7th  Ann.  c.  18. 


L.  3.  C.  6.  Sect.  398.      Of  Discents.  [243.  a.  243.  b. 

If  upon  a  writ  of  diem  clausit  exfremum,  the  youngest  sonne  12  E.  4. 18. 
be  found  heire,  the  eldest  son  hath  no  remedy  by  the  common 
law,  because   they  claimed  by  one  title ;  but  otherwise  it  is  if 
they  claime  by  severall  titles,  as  it  appeareth  in  our  bookes  (2). 
But  this  is  now  holpen  by  a  statute  *   made  since  Littleton  *  2  E.  6.  cap.  8. 
wrote.  2  H.  7.  12.  a. 

If  two  parsons  be  in  debate  for  tithes,  which  amount  to  above  next^fJllo^wi'i'"" 
the  fourth  part,  and   one  man  is  patron  of  both  churches,  no 
indicavit  doth  lye,  for  that  both  incumbents  claime  by  one  and 
the  same  patron.     Et  sic  de  similibus. 

And  where  Littleton  saith,  seised  of  lands  in  fee,  the  same 
law  it  is  if  a  man  bee  seised  of  lands  in  taile,  and  hath  issue 
two  sonnes  mutatis  mutandis. 

'■^  And  is  seised,  (Src."     That  is  to  say,  actually  seised,  either  (Post.  245.  a.) 
by  entrie,  as  Littleton  here  putteth  it,  or  by  possession  of  the 
lessee  for  yeares,  or  the  like. 

"  Had  no  title,  &c."    That  is  to  say,  any  pretence  or  semblance 
of  title,  as  the  younger  brother  here  hath ;  and  in  many  other 
cases  there  is  a  great  diversitie  holden  in  our  bookes  [o]  where  [o]  2  E.  2. 
one  hath  a  colour  or  pretence  of  right,  and  when  he  hath  none  Bastardie,  19. 
at  all,  whereof  you  may  read  plentifully  in  our  bookes.  H  A«    8 

.39  E.  3. 26.         17  E.  .3.  59.         11  E.  3.  Ass.  88.        21  H.  6. 14.         11  E.  3.  Age,  3. 
Vide  Sect.  400.  &  cap.  Garran.  (A). 

(A)  <S'ee  the  observation  under  (B)  at  the  end  of  the  commentary  on  Sect.  400. 

Sect  398. 

TN  the  same  manner  it  is,  if  a  man  seised  of  certaine  land  in  fee,  hath 

issue  tivo  daughters  and  dieth,  the  eldest  daughter  entreth  into  the  land 

claiming  all  to  her,  and  tJcereof  onely  taketh  the  profits,  and  hath  issue  and 

dieth  seised,  hy  luhich  her  issue  enter,  ivhich  issue  hath  issue  and  dieth 

seised,  and  the  second  issue  enter  f,  &  sic  ultra,  yet  the  younger  daughter, 

or  her  issue  as  to  the  moitie,  may  enter  upon  any  issue  zvhatsoever 

t343."|  of  the  elder  ^^^daughter  notivithstandiny  such  discent,for  that 
b-  J  they  claime  by  one  same  title,  ^c.  But  in  such  case  where  both 
sisters  have  entred  after  the  death  of  their  father,  and  ivere 
thereof  seised,  and  after  the  eldest  sister  had  disseised  the  younger  of  her 
part,  and  ivas  thereof  seised  infee,  and  hath  issue,  and  of  such  estate  dieth 
seised,  whereby  the  lands  descend  to  the  issue  of  the  elder  sister,  then  the 
younger  sister  nor  her  heirs  cannot  enter,  ^c.  causa  qua  supra,  &c. 

"  CLAIMING 

f  &c.  added  in  L.  and  M.  and  Roh. 


(2)  At  the  common  law,  if  the  youngest  son  were  found  heir,  the  eldest 
might  have  an  office  ;  the  doubt  was,  whether  the  point,  which  was  heir, 
should  be  tried  by  immediate  interpleader,  or  at  the  full  age  of  him  that  was 
first  found  heir :  but  the  2d  and  3d  Ed.  6.  ch.  8.  hath  remedied  it,  and  given 
an  interpleader  immediately,  on  traversing  the  first  office,  which  cannot  be, 
unless  the  party  who  traversed  had  an  office  found  for  himself.  7  Co.  44.  a.  b. 
Kenn's  case. — [Note  174.] 


243.  b.]  Of  Discents.       L.  3.  C.  6.  Sect.  399. 

(Hob.  120.  "  f^LAlMING  all  to  her."     Here  it  appeareth,  that  when  the 

Post.  373.  b.  one  coparcener  doth   specially  enter,  claiming  the  whole 

Ant.  198.)  land,   and   taking  the  whole   profits,  that  she  gaines  the  one 

21  Ass.  19.  .  '.  .        />  1  •  1         I  1  II-  -J 

21  E.  3. 7. 27.32.  moitic,  VIZ.  ot  her  sister  by  abatement,  and  yet  her  dying  seised 
26  Ass.  2.  shall  not  take  away  the  entrie  of  her  sister  ;  whereas  when  one 

SR  A^^'  *^^'l  coparcener  enters  generally,  and  taketh  the  profits,  this  shall  be 
43  E.  3. 19.'  accounted  in  law  the  entrie  of  them  both,  and  no  divesting  of 
4  H.  7. 10.  the  moitie  of  her  sister  (1). 

m^6()  f'  ^^  ^^^  coparcener  enter  claiming  the   whole,   and   make  a 

See  more  of  this  feoflfment  ill  fee,  and  take  backe  an  estate  to  her  and  her  heires, 
in  the  chapter  and  hath  issue  and  die  seised,  this  discent  shall  take  away  the 
of  Warrantie,  entrie  of  the  other  sister,  because  by  the  feoffment  the  privitie 
Sect.  710.  p  ,,  •  J     i  1 

28  Ass.  30.  of  the  coparcenarie  was  destroyed. 

Vide  Sect.  710. 

yf  ^'^a'iI^'  "  Claime  hy  one  same  title,  &c."    Of  this  suflBcient  hath  becne 

said  in  the  next  precedent  Section. 

"  Cannot  enter,  &c."     Of  this  there  hath  beene  also   spoken 
in  the  same  Section. 


Sect.   399. 


A  LSO  if  a  man  he  seised  of  eertaiii  lands  in  fee,  and  htith  issue  tivo 
sonnes,  and  the  elder  is  a  bastard,  and  the  younger  mulier,  and  the 
father  die,  and  the  bastard  entreth  claiming  as  heire  to  his  father,  and 
occupieth  the  land  all  his  life,  ivithout  any  entrie  made  upon  him  by  the 
mulier,  a7id  the  bastard  hath  issue,  and  dieth  seised  of  such  estate  in  fee, 
and  the  land  descend  to  his  issue,  and  his  issue  entreth,  S^c.  in  this  case  the 
mulier  is  without  remedie,  for  he  may  not  enter,  nor  have  any  action  to 
recover  the  land,  because  there  is  an  ancient  law  in  this  case  used,  ^c* 

PI.  Com.  57.        "  CfEI^ED  in  fee."     For  this  holds  not  in  case  of  an  estate 

39  E.  3.     Le  >!>   ^aile. 

darreine  case. 

Lib.  8.  fol.  101,  "  Mulier,"  aeu  filius  mulier atus.  31nlier  hath  three  significa- 
102.  Sir  Rich,  tions.  First,  Suh  nomine  mulieris  continetur  quail ihet  fiKmina. 
n^^XXAh^^'^'  Secondly,  Froprie  sub  nomine  mulieris,  continetur  virgo.  Thirdly, 
584.  586.  '  Ap2)ellatione  nuilier is,  i7i  leg ibus  Anglia;,  continetur  uxor.  Et  sic 
Doctor  &  Stud.  fiUus  natus  vel  flia  nata  ex  justd  uxore,  appellatur  in  legibu^ 
fM'  1  Vh  *-  Ani/licejilius  muUcratus,  seu  jilia  mulierata,  a  sonne  mulier,  or  a 
cap.  2. '  '  '  daughter  mtdicr.  Sicut  bastardus  (2)  dicitur  a  Gricco  verba 
Bract,  lib.  5.  cap.  19.     Brit.  cap.  70.     Vi4e  Sect.  188. 

Bassaris, 

*  &c.  not  in  L.  and  M.  or  Roh. 


(1)  Hob.  120.  Smale  v.  Dales.  21ie  contrary  is  held,  that  one  coparceny)- 
cannot  be  disseised  without  actual  ouster,  and  claim  sJiall  not  alter  the p>ossession. 
Lord  Nott.  MS.— [Note  175.] 

(2)  Sir  Henry  Spelman,  verba  Ba'itard,  rejects  this  derivation,  and  holds  it  to 
he  a  pure  Saxon  icord  Bastart,  viz.  impure  natus,  ut  apud  nos.  Upstart  dicitur 
homo  novus.  Lord  Nott.  MS. — In  Germany,  and  with  us,  (who  derive  many 
of  our  customs  and  political  opinions  from  the  Germans),  bastardy  was  always 
a  circumstance  of  ignominy.     But  in  Spain,  Italy,  and  France,  bastards  were 

ia 


L.  3.  C.  6.  Sect.  399.        Of  Discents.  [244.  a. 

Bassaris.  i.  e.  meretrtx,  seuconcubina,qia'aprocreafur 
['34:4."]  cx  meretrice  scu  JS@°"  concubind.  In  English  hee  is 
L     a.     J  called  base  borne,  and   thereupon   some  say,  that  a 

bastard  is  as  much  as  to  say,  as  one  that  is  base  na- 

turall,  for  acrd  signifieth  nature.     I  read  in  Fleta  [j>]  that  there  [p]  Flet.  lib.  1, 

bee   three  kindes  of  bastards,  viz.  manser,  nofhus,  (£•  spurius,  y/^'g^ggg).  ogQ 

which  are  described  in  two  old  verses  :  (l  Roll.  Abr. 

356,  357,  358, 

Manseribus  scortum,  nofho  moechus  dedit  ortum.  359. 

lit  seyes  e  spied,  sic  spurius  est  ah  amicd  (1).  p'^^j/'^^o/'*^' 

Palm.  9.     4  Inst.  36.) 
But  we  terme  them  all  by  the  name  of  bastards  that  are  borne  out 

of  lawfull  marriage.    By  the  common  law  \rl  if  the  husband  be  M  Bract,  lib.  4. 

within  the  foure  seas,  that  is  within  the  jurisdiction  of  the  king  7^  4  9     " 

of  England,  if  the  wife  hath  issue,  no  proofe  is  to  be  admitted  43  e.  3. 19. 

to  prove  the  childe  a  bastard,  (for  in  that  case  Jiliafio  non  ixjtest  41  E.  3.  7. 

jvobari)  unlesse  the  husband  hath  an  apparent  impossibilitie  of  29  ass^  54** 

procreation ;  as  if  the  husband  be  but  eight  yeers  old,  or  under  93  ass'.  14*. 

the  age  of  procreation,  such  issue  is  bastard,  albeit  he  be  borne  l  H.  6.  7. 

within  marriage  (2),     [s]  But  if  the  issue  be  borne  within  a  ll^'-^'H' 

[s]  18  E.4.28.    (l'Salk.'l20.) 

moneth 

in  many  respects  on  an  equal  footing  with  legitimate  children.  During  the 
first  and  second  races  of  the  king  of  France,  no  difference  appears  to  have 
been  made  between  their  legitimate  and  illegitimate  offspring.  The  same 
seems  to  have  been  the  case  of  the  offspring  of  all  the  sovereign  princes  and 
higher  ranks  of  nobility  in  France.  Their  acknowledging  a  natural  child  to  be 
their  child  was  considered  as  tantamount  to  any  formal  act  of  legitimation. 
But  the  natural  children  of  all  other  persons  were  considered  as  villeins.  After 
the  accession  of  the  Capetian  line,  the  condition  of  bastards  was  altered  for  the 
worse  in  many  respects.  Those  of  royal  parentage  were  excluded  from  the 
throne,  and  were  no  longer  held  to  be  of  blood  royal.  They  were  only  per- 
mitted to  bear  the  arms  of  France,  with  a  bar.  A  singular  change  took  place 
with  regard  to  the  bastards  of  the  princes  and  nobility.  By  an  ordinance  of 
the  year  1600,  it  was  declared,  that  the  children  of  nobility  should  not  be  con- 
sidered even  as  gentlemen,  unless  they  obtained  letters  of  nobility.  On  the 
other  hand,  the  bastards  whose  parents  were  of  a  lower  order,  instead  of  being 
considered  villeins,  as  before,  began  about  the  commencement  of  the  IGth  cen- 
tury to  be  considered  as  free  men,  and  except  as  to  the  right  of  receiving  and 
transmitting  succession,  they  are  now,  in  France,  on  an  equal  footing  with 
their  fellow  subjects.  See  Oeuvrcs  de  Chancelier  D' AyueKseau,  t.  7.  p.  881. 
Dissertation  dans  laipudle  on  discntc  Ics  ^^rincipes  du  droit  Romain  et  du  droit 
Francois  par  raport  aiix  Batards. — [Note  176.] 

(1)  Filius  naturaUs  d  vulgo  barbarorum  ojtponitur  Ircjitimo.  Scd  revera 
opponitur  filio  adoptivo,  in  quo  sensu  Tiberius  cocat  Drusuvi  Jilitim  suumnatu- 
rUem.  C'al.  Lex.  verb.  nut.  fdius.  Spurii  Latini  et  G roici  sine  patre.  lb. — 
Lord  Nott  MS.  Jure  pontijieio  iiothi  decuntur  qui  ex  adulterino  concubitu, 
manseres  qui  ex  scorto,  sjiurii exitus  qin  sac7-is  initiati sunt,  aut  rcligioncm pro- 
fessi  sunt  — lb. — [Note  177.] 

(2)  It  is  now  held,  that  the  husband's  being  within  the  four  seas  is  not 
conclusive  evidence  of  the  legitimacy  of  the  child,  and  it  is  left  to  a  jury  to 
consider  whether  the  husband  had  access  to  his  wife.  See  3d  P.  W.  275,  276, 
Pendrell  v.  Peudrell,  2  Stra.  025.  So  evidence  may  be  given,  that  the  hus- 
band's habit  of  body  was  such,  as  to  make  his  having  children  an  impossibility. 
Lomax  V.  Holmden,  2  Stra.  940.     See  also  1  Roll.  Abr.  o58.     1  Salk.  12o. 

But 


244.  a.]  Of  Discents.        L.  3.  C.  6.  Sect.  399. 

moneth  or  a  day  after  mariage,  betweene  parties  of  full  lawfull 
age,  the  child  is  legitimate  (3). 

"  Descend  to  his  issue."  For  if  the  bastard  dieth  seised  with- 
out issue,  and  the  lord  by  escheat  entreth,  this  dying  seised  shall 
not  barre  the  mulier,  because  there  is  no  discent.  If  the  bas- 
tard enter,  and  the  ?» idier  dieth,  his  wife  privement  ensient  with 
a  Sonne,  the  bastard  hath  issue  and  dieth  seised,  the  sonne  is 
borne,  his  right  is  bound  for  ever.  But  if  the  bastard  dieth 
seised,  his  wife  ensient  with  a  sonne,  the  mtdier  enter  the  sonne 
(Post.  260.  273.    is  borne,  the  issue  of  the  bastard  is  barred ;  for  Litdeton  putteth 

1  Roll.  Abr.  624.  j^jg  (.^se,  that  there  must  not  only  be  a  dying  seised,  but  also  a 
8  Rep.  101.  b.       J.  '     ,  •     •  ^  -^     °  ' 

Ant.  15.  a.  discent  to  his  issue. 

7  Rep.  42.) 

"  And  his  issue  entreth,  &c."  And  so  it  is  to  be  understood, 
albeit  the  midier,  after  the  decease  of  the  bastard,  doth  enter 
before  the  heir  of  the  bastard ;  for  the  discent  bindeth,  and  not 
the  entrie  of  the  heire. 


Lib.  8. 101, 102.  ''  The  mulier  is  icithout  remedie."  Hereby  it  appeareth  that 
Sir  Rich  Lech-  this  discent  difFereth  from  other  discents,  for  this  discent  barreth 
fords  case.  ^.j^g  right  of  the  midier,  whereas  other  discents  do  take  away  the 

entrie  only  of  him  that  right  hath,  and  leaveth  him  to  his  action, 
but  here  by  the  dying  seised  of  the  bastard,  his  issue  is  become 
[a]  5  E.  2.  lawfull  heire.     [o]  It  is  holden   that  if  the  mulier  bee  within 

Discent,  Br.  49.  g^gg  ^^  ^j^g  j.jjj-jg  ^^  ^j^g  jjing  seised,  that  nevertheless  hee  shall 

33  E.  3.   '     '  ^66  barred,  because  the  issue  of  the  bastard  is  in  judgement  of 

Verdict,  48.  law  become  lawfull  heire,  and  the  law  doth  preferre  legitimation 

36  Ass.  2.  before  the  privilege  of  infiincie. 

Stowel's' case.  -^^^  ^be  reason  of  this  case  is,  for  that  Justum  non  est  aliquem 

10  E.  3.  2.  post  mortem  facere  bastardum,  quitoto  tempore  vittv  sucf  pro  legi- 

timo  hahehatiir.     And  so  it  seemeth  to  be,  that  if  a  man  hath 

13  E.  1.  tit.  issue  a  sonne  being  bastard  eigne,  and  a  daughter,  and  the  daugh- 
Bastardie  28.  t^r  is  married,  the  father  dieth,  the  sonne  entreth  and  dieth 
5  Rep  98)^'  seised,  this  shall  barre  the  feme  covert.    And  the  discent  in  this 

case  of  services,  rents,  reversions,  expectant  upon  estates  taile, 

14  E.  2.  or  for  life,  where  upon  rents  are  reserved,  &c.  shall  binde  the 
Basurdie,  26.      ^.jg|^(.  ^£  ^j^g  r,^^^^Jl^J,^  b^t  ^  discent  of  these  shall  not  drive  them, 

that  right  have,  to  an  action. 

Sir  Rich.  Lech-        §0  if  the  bastard  dieth  seised,  and  his  issue  endoweth  the  wife 

ford's  case,  ubi.    ^^  ^j^g  bastard,  yet  is  not  the  entrie  of  the  midicr  lawfull  upon 

(Ant.  241.  tbe  tenant  in  dower,  for  his  right  was  barred  by  the  discent. 

20  H.  3.  If  the  bastard  eigne  entreth  into  the  land,  and  hath  issue,  and 

^T^^'^f'^o'.^o  P'  entreth  into  religion,  this  discent  shall  barre  the  right  of  the 
(Post.  248.)  ,.  o      '  o 

mulier. 

Hill.  18  E.  3.  "  Hath  issue  two  sonnes."    If  a  man  hath  issue  such  a  bastard 

cor.  Reg.  Rot. 

144.  Ebor.     17  E.  3.     59  F.  tit.  Bastard,  32.     Sir  Rich.  Leehford's  case,  ubi  supra, 

See  afterwards  iu  the  Chapter  of  AYarranties.     (Post.  368.  a.) 


But  the  rule  laid  down  by  lord  Coke,  was  once  generally  received.  In  Jenk. 
c.  10.  pi.  18.  it  is  said,  "  that  if  the  husband  be  in  Ireland  for  a  year,  and  the 
"  wife  in  England  during  that  time  has  issue,  it  is  a  bastard ;  but  it  seems 
''  otherwise  now  for  Scotland,  both  being  under  one  king,  and  make  but  one 
•'  continent  of  land. — See  ant.  note  2,  to  p.  126. — [Note  178.] 
(3)  See  note  1,  to  page  245.  a. 


L.  3.  C.  6.  Sect.  400.      Of  Discents.         [244.  a.  244.  b. 

as  is  aforesaid,  and  dieth,  and  the  bastard  entreth  and  dieth 
seised,  and  the  land  desccndeth  to  his  issue,  the  collateral!  heire 
of  the  father  is  bound,  as  well  as  where  there  be  two  sonnes. 

And  where  our  author  speaketh  of  sonnes,  so  it  is  if  a  man 
hath  issue  two  daughters,  the  eldest  being  a  bastard,  and  they 
enter  and  oecupie  peaceably  as  hcires ;  now  the  law  in  favour  of 
legitimation  shall  not  adjudge  the  whole  possession  in  the  mulier, 
(who  then  had  the  only  right)  but  in  both,  so  as  if  the  bastard 
hath  issue  and  dieth,  her  issue  shall  inherit. 

tQ44r.l      B@°"  [b]  And  in  the  same  case,  if  both  daughters  ['']  2  E.  3.  tit. 
b.     J  enter  and  make  partition,  this  partition  shall  binde  the  21^1;^  3  '34  b. 
mulier  for  ever.  30  Ass.  p.  7. 

[c]  And  an  assise  of  mort  d'ancester  lieth  not  betweene  the  Sir  Rich.  Lech- 
bastard  and  the  mulier  in  respect  of  the  proximitie  of  bloud.       ior^^'^  case, 
And  the  bastard  being  impleaded  or  vouched  shall  have  his  age.  [g]  Brit.  cap.  73. 

20  E.  3. 
"  And  the  bastard  entreth  as  heire  to  his  father."  If  a  man  hath  1?^^\  ^^^^  3 
issue  bastard  eigne  and  mulier  puisne,  and  the  bastard  in  the  life  5  i\\  \ 
of  the  father  hath  issue  and  dieth,  and  then  the  father  dieth  Sir  Rich.  Lech- 
seised,  and  the  sonne  of  the  bastard  entreth,  as  heire  to  his  grand-  ^X^'^  '^^^^' 
father,  and  dieth  seised,  this  discent  shall  binde  the  mulier.  ,^^^_  ^^^q'  b.) 

^'Because  there  is  an  ancient  law  in  this  case  used,  &c."  As 
hereafter  in  our  Commentarie  upon  the  two  next  Sections  shall 
appeare,  by  our  anticnt  bookes,  and  the  antient  statutes  of  the 
realme.  And  here  is  implyed  how  necessarie  it  is,  after  the 
example  of  our  author,  to  looke  into  the  antiquities,  than  which 
nothing  is  more  venerable,  profitable,  and  pleasant  (1). 


Sect.  400. 

J^UT  it  hath  heene  the  opinion  of  some,  that  this  shall  he  intended 
where  the  father  hath  a  sonne  bastard  by  a  woman,  and  after  mar- 
rieth  the  same  woman,  and  after  the  espousals  he  hath  issue  by  the  same 
woman  a  son  or  a  daughter,  and  after  the  father  dieth,  ^-e.  if  such  bastard 
entreth,  ^c.  and  hath  issue  and  die  seised,  cj-c.  then  shall  the  issue  of  such 
hastand  have  the  land  cleerely  to  him,  as  it  is  said  before,  ^c.  and  not  any 
other  bastard  of  the  mother  which  was  never  quarried  to  his  father.  And 
this  seemeth  to  be  a  good  and  reasonable  opinion :  for  such  a  bastard 
borne  before  marriage  celebrated  betweene  his  father  and  his  mother,  by 
the  law  of  holy  church  is  mulier,  albeit  by  the  law  of  the  land  he  is  a 
bastard,  and  so  he  hath  a  colour  to  enter  as  heire  to  his  father,  for  that 
he  is  by  one  law  mulier,  scilicit,  by  law  of  holy  church.  But  otherwise 
it  is  of  a  bastard  ivhich  hath  no  manner  of  colour  to  enter  as  heire  (Mes 
auterment  est  de  bastard  que  n'ad  ascun  *  maner  colour  d'entre  come 

heire), 

*  maner  not  in  L.  and  M.  hut  in  Roh. 


(1)  In  the  case  of  Pride  v.  the  earls  of  Bath  and  Montague,  it  was  held, 
that  the  rule  that  a  person  shall  not  be  bastardized  after  his  death,  is  only  good 
in  the  case  of  bastard  eigne  and  mulier  puisne.     1  Salk.  120. — [Note  179.] 


244.  b.  245.  a.]       Of  Discents.       L.  3.  C.  6.  Sect.  400. 

heire),  in  so  much  as  hee  can  hy  no  law  bee  said  to  he  mulier,  for  such 
a  bastard  is  said  in  the  law  to  be  quasi  mullius  filius,  &c.  (2). 


"  J^IT  it  hath  Lecac  the  ajyinioii  of  soriie,  d'c."  rQ.45.~| 
And  our  author  here  saith,  that  this  opinion  L    ^*      J 
is  good  and  reasonable,  for  that  such  a  bastard,  by  the 
*  ViJ  Britton       -^^^  "f  holj  church  *  is  a  muh'er. 

fol.  128.  b.  166.  Matrimoniiim  siihsequens  leyitimosfant  quoad  sacerdotivm  nan 
^^^i  f^M^  ^^^  9"^^^^^^  successione7n,  propter  consuetudinem  reijni  qiiod  se  Jiahet  in 
20  H.  3.  cap.  19.  contrarium.  Yet  the  canon  law  holdcth  them  legitimate  ^woac? 
confirmeth  this  opinion.    Hill.  18  E.  3.  coram  rege  in  Thesaur.  Eborum.    Bracton,  lib.  2.  fol.  63. 

successionem. 


(2)  Nota,  Inst.  96,  97.  On  the  statute  of  Merton,  Pope  Alexander  HI. 
(a7in.  1160,  6  JI.  2.)  ordained,  that  children  horn  before  matrimony/,  where 
matrimony  folloics,  should  be  as  leyitimate  as  those  horn  after  marriaye,  quia 
ecclesia  talcs  habet  pro  legitimis. — Constitutio  pontifica,  or  the  canon  law,  est 
intelligenda  solummodo  de  filiis  natis  ex  coitu,  qui  poterunt  esse  conjugales; 
qui  vero  ex  damnato  coitu,  nascuntur,  scilicet  ex  coitu  incestuoso  vel  adulte- 
rine, cujusmodi  coitus  non  poterat  esse  uxorius,  tamen  nunquam  legitimari  pos- 
sunt  per  subsequens  matrimonium.  Ratio  est  quia  matrimonium  subsequens 
ex  fictitione  legis  retrahitur  ad  tempus  susceptionis  liberorum,  ut  legitimati 
habeantur  legitime  suscepti  (i.  e.)  post  contractum  matrimonium.  Fictio 
autem  juris  nunquam  admittur  contra  naturam  et  bonos  mores.  Quapropter 
lex  non  potest  fingcre  matrimonium  fuisse  cum  eis,  cum  quibus  nuptise  non 
potuerunt  esse  per  leges ;  quia  in  fictionibus  translationis  requiritur  habilitas 
extrcmorum  a  quo  et  ad  quem.  Ideoque  leges  civiles  et  decretales  olim  matri- 
monium inter  adultcros  prohibebant,  contractumque  dirimebant.  Jam  vero 
ista  prohibitio  locum  non  habet,  nisi  in  mortem  prioris  conjugis  alteruter  fuerit 
machinatus,  vel  premature,  dum  adhuc  viveret,  de  conti-ahendo  post  mortem 
ejus  connubio  pacta  fuerit  fides.  Secundo  notandum  est  quod  subsec|uens 
matrimonium  legitimos  facit  quoad  spiritualia,  non  quoad  temporalia,  quia 
Papa  non  potest  legitimare,  quoad  temporalia,  extra  sui  ipsius  dominica,  sci- 
licet extra  terras  quse  sunt  de  patrimonio  sancti  Petri,  quod  Papa  Innocen- 
tius  III.  confitebatur  (ergo  Anglia  non  est  ex  patrimonio  sancti  Petri  quicquid 
fecerit  Rex  Johannes.)  Et  Sanchez  quem  Clemens  III.  valde  laudavit,  aperte 
dicit,  si  proles  habita  sit  ex  concubitu  omino  fornicano,  earn  non  posse 
pontificem,  quoad  temporalia  et  secularia,  legitimare.  All  this  was  said  and 
proved  oiit  of  ancient  authors  hy  a  learned  advocate,  whose  discoiirse  is  jyrinted  at 
larye  in  the  modern  arrets  collected  hy  Mons.  de  Maison.  Arrestl^.  And  there 
the  p>ri.ncip)al  case  was,  the  titicle,  in  the  life  of  his  wife,  had  a  child  by  his  niece 
and  god-daughter,  on  promise  of  marriage  when  time  should  serve :  the  wife  dies, 
and  then  the  uncle  had  other  children,  and  ten  years  after,  hy  dispensation  from 
the  2}ope,  containing  a  clause  of  legitimation  of  the  cliildren  horn  before,  marries 
her.  Res.  Thepopds  dispensation  teas  void  as  to  any  legitimation,  ichich,  whether 
it  ivere  because  the  marriage  ivere  icithin  the  Levitical  degrees,  or  because  of  sjri- 
ritual  kindred,  or  because  against  the  council  of  Trent,  a  general  council  being 
held  hy  the  Sorhonne  to  he  above  the  p>ope,  apipears  not ;  hut  may  he  for  all  these 
reasons,  as  for  none  of  them,  hut  only  because  tliep)op>e  cannot  legitimate  in  tem- 
porals. Idly.  That  the  children  of  this  marriage  should  have  pensions  to  live 
on,  whicli  may  seem  to  approve  the  dispensation  as  to  the  marriage,  odly. 
That  no  such  he  granted  for  the  future.  Ibid.  Romani  filios  naturales  tantum 
non  alio  jure  habuerunt  quam  peregrinos.  Theodosii  &  Arcadii  principatu 
temperata  fuit  legum  severitas,  ac  deinde  Zenonis  lege  obtinuit,  ut  natu- 
rales liberi  consequentibus  cum  matre  nuptiis  justi  ac  legitimi  haberentur. 

Bodinus 


L.  3.  C.  6.  Sect.  400.         Of  Discents.  [245.  a. 

successionem.  At  a  parliament  liolden  [ry]  anno  20  II.  3,  for  that  [,y]  statut.  de 
to  ccrtifie  upon  the  king's  writ,  that  the  soune  borne  before  mar-  Merton. 
riage  as  a  bastard,  was  confra  commvuem  formam  ecclesia,  roga-  yj^  Bract^'l   5 
verinit  omncs  cpiscopi  magnates  vt  consentirent,  quod  nati  ante  f.  416.  417. 
matrimoninm  essent  legitimi,  sicvt  ilU  qui  nati  sunt  post  matrimo-  10  Ass.  PI.  20. 
niuni  guantiim  ad  successionem  hscreditariam,  quia  ecclesise  tales 
hahet  pro  legitimis :   et  omncs  comites  &  harones  una  voce  respon- 
derunt  quod  nolunt  leges  Anglas  mutare,  quae  hucusque  usitatee 
sunt  &  approhatae. 

"  So  he  hath  colour  to  enter,  <&c."  Hereit  is  to  be  observed, 
that  the  law  more  respecteth  him  that  hath  a  colourable  title, 
though  it  be  not  perfect  in  law,  than  him  that  hath  no  title  at 
all,  as  hath  beene  said  [r]  before  (1).  [,.]  vide  Sect. 

Qppf     397.  <t  Cap.  Gar. 

^^^^-    Sect.(B) 

(B)  See  post.  376,  where  it  is  said  that  the  bastard  eigne  may  he  vouched  alone,  hecav«e 
he  is  in  appearance  heir,  &c.  See  also  .368.  a.  &  h.  369.  o.  &  b.  and  Sect.  698,  and  the 
12  following  aeciionst  here. 

Bodinus  de  Eepub.  lib.  1.  cap.  4.  p.  29.  Sed  nota,  quod  ante  Zenonis  tem- 
pora,  viz.  per  legem  Divi  Constantini,  nati  ante  matrimonium,  fiebant  legitimi 
per  matrimonium  subsequens;  quod  tanien  esplicatur  in  eodum  codice,  viz. 
per  matrimonium  legitimantur  liberi  naturalcs  modo  procreati  sint  muliere 
libera,  &  cujus  matrimonium  non  est  legibus  interdictum.  Vid.  Mons.  de  Mai- 
soris,  Arrest  20,  page  359. — LordJVott.  MS. — [Note  180.] 

(1)  Both  by  the  civil  and  canon  law,  children  born  before  marriage  are 
made  legitimate  by.  the  subsequent  marriage  of  their  parents.  This  was  esta- 
blished in  the  civil  law  by  the  emperor  Constantino,  and  confirmed  by  the 
emperor  Justinian.  It  was  established  in  the  canon  law  by  a  constitution  of 
pope  Alexander  the  Third,  in  1160.  This  legitimation  is  a  privilege  or  inci- 
dent inseparably  annexed  to  the  marriage ;  so  that  though  both  the  parents 
and  the  children  should  wave  or  refuse  it,  the  children  nevertheless  would  be 
legitimate.  But  it  holds  in  these  cases  only,  where,  at  the  time  of  the  birth 
of  the  children,  it  was  lawful  for  both  parents  to  intermarry ;  for,  if  the  father 
were  married  to  another  woman  at  the  time  of  the  birth  of  the  children,  and 
afterwards  his  wife  died,  and  he  married  the  mother  of  the  child,  the  child 
would  not  be  legitimated  by  this  subsequent  marriage.  Children  thus  legiti- 
jpated  are  on  an  eqvial  footing  with  the  legitimate  children;  and,  if  they  die 
before  the  marriage  of  their  parents,  still  they  are  considered  as  legitimate, 
and  transmit  their  legitimacy  to  their  issue;  but,  whether  they  are  considered 
legitimate  only  from  the  time  of  the  marriage  of  their  parents,  or  Avhether  their 
legitimacy  by  their  parents  marriage  has  relation  back  to  the  time  of  their 
birth,  is  a  point  warmly  disputed  by  the  civilians  and  canonists.  The  prevail- 
ing opinion  seems  to  be,  that  they  are  to  be  considered  as  legitimate  from  the 
time  of  their  birth  to  all  purposes  but  those  in  which,  to  consider  them  as  such, 
would  operate  to  the  detriment  of  a  third  person.  Thus,  if  there  be  a  natural- 
born  child,  and  the  father  afterwards  marries  and  has  sons ;  his  wife  dies,  and 
he  marries  the  woman  by  whom  he  had  the  natural  child :  it  seems  to  be  the 
better  opinion,  that  the  child  legitimated  by  the  subsequent  marriage  does  not 
acquire  the  right  of  progcniture  over  the  sons  of  the  first  marriage. 

The  doctrine  of  legitimacy  by  a  subsequent  marriage  was  never  admitted 
into  the  English  law;  and  the  refusal  of  tlie  noblemen  of  our  nation  to  admit 
it,  on  the  occasion  mentioned  in  Sir  Edward  Coke's  Commentaries,  is  spoken 
of  by  Sir  William  Blackstone  and  other  writers,  as  a  memorable  instance  of 
their  jealousy  of  the  civil  law,  and  their  firmness  in  opposing  foreign  inno- 
vations. 

The  doctrine  of  legitimation  prevails,  with  different  modifications,  in  France, 

Germany, 


245.  a.J  Of  Discents.  L.  3.  C.  6.  Sect.  401. 


Sect.  401. 

J)UT  in  the  case  aforesaid,  where  the  bastard  enter  after  the  death  of 
the  father,  and  the  mulier  oust  him,  and  after  the  bastard  disseise 
the  mulier,  and  hath  issue  and  dieth  seised,  and  the  issue  enter,  then  the 
mulier  may  have  a  writ  of  entrie  sur  disseisin  against  the  issue  of  the 
bastard,  and  shall  recover  the  land,  ^c.  And  so  you  may  see  a  diversity 

where 

Germany,  and  Holland.  By  an  arret  d'audience  of  the  21st  June  1G68,  it 
was  adjudged,  that,  if  a  person  marries  in  England,  a  woman,  by  whom  he 
had  children  previous  to  the  marriage,  the  children  born  in  France  are  legiti- 
mated by  it,  and  acquire  all  the  rights  of  legitimacy  under  the  French  law. 
8ee  c.  10.  C.  de  Natur.  lib.  Nov.  89.  c.  8.— Vinn.  in  Inst.  L  1.  t.  10.  s.  13.— 
Hein.  Elem.  Jur.  de  Legitimatione. — Traite  des  Successions  par  le  Brun, 
ed.  1776,  lib.  1.  c.  2^s.  1.  d.  1.  1.  2.  c.  2.  s.  1.  n.  13,  and  Sir  John  Fortescue, 
c.  39.  Till  the  statute  of  Merton,  the  question  whether  born  before  or  after 
marriage,  was  examined  before  the  ecclesiastical  judge,  and  his  judgment  was 
certified  to  the  king  or  his  justices,  and  the  king's  court  either  abided  by  it  or 
rejected  it  at  pleasure.  But,  after  the  solemn  protest  made  by  the  barons 
at  Merton  against  the  introduction  of  the  doctrine  of  the  civil  and  canon  law 
in  this  respect,  special  bastardy  has  been  always  triable  at  common  law ;  and 
general  bastardy  alone  has  been  left  to  the  judgment  of  the  ecclesiastical 
judge,  who  in  this  case  agrees  with  the  temporal.  2  Inst.  98.  Keeves's  Hist. 
of  the  English  law,  85,  201,  and  see  ant.  note  2,  to  page  126.  a.  If  the  reader 
wishes  to  become  acquainted  with  the  doctrine  of  the  Roman  law  on  marriage, 
and  the  legitimacy  and  illegitimacy  of  children,  he  will  find  it  succinctly  and 
perspicuously  stated  in  Pothier  Traite  de  Contrat  de  3Iarria(je,  partie  1.  c.  2. 
In  the  third  chapter  of  the  same  work  he  discusses  the  celebrated  question, 
"  de  I'autorite  de  la  Puissance  Seculiere  sur  le  Marriage."  He  concludes  that 
chapter  with  the  following  sentence,  "  Par  tout  ce  qui  vient  d'etre  dit,  il  ne 
"  peut  rester  aucun  doute  que  la  puissance  seculiere  a  le  droit  de  faire  des 
"  loix  sur  les  marriages,  dont  I'inobservation  les  rende  absolument  et  entire- 
"  ment  nuls,  non  seulement  quant  aux  eifets  civile,  mais  meme  quant  au 
''  lien,  et  c[ui  les  empechent  en  consequence  de  pouvoir  servier  de  matiere  au 
"  sacrement  de  marriage."  The  same  doctrine  is  laid  down  by  Sanchez  in  his 
famous  Treatise  de  Matrimonio,  lib.  7.  disp.  3.  n.  3.  where  he  says,  "  Absque 
"  dubio  dicendum  est  posse  principem.  secularem  ex  genere  et  natura  suae 
"  potestatis,  matrimonii  impedimenta  dirimentia,  fidelibus  sibi  subditis  ex 
''justa  causa  indicere.  .  .  Nee  obstat  principis  secularis  potestati,  matri- 
"  monium  esse  sacramentum,  quia  ejus  materia  contractus  civilis  ;  qua  ratione 
"  perinde  potest  ex  justa  causa  illud  irritare,  ac  si  sacramentum  non  esset, 
"  reddendo  personas  inhabiles  ad  coutrahendum,  &  sic  invalidum  contractum." 
Doctor  Launoi,  in  his  treatise  Regia  in  Matrimonixim  Potestas,  cites  number- 
less passages  to  the  same  efi'ect,  from  divines  of  all  countries  and  all  schools. 
The  article  Empechemens  de  Marriage,  in  the  Encyclopidie  MetJiodique,  lately 
published  at  Paris,  establishes  the  same  doctrine  in  these  words :_  "Le  mar- 
triage  forme  actuellement  un  tout  compose  de  deux  parties  soumises  a  deux 
"puissances  qui  influent  sur  son  existence,  avec  cette  diiFerence  cependant, 
"qui  I'eglise  est  obligee  de  se  soumettre  aux  empechemens  etablis  par  le 
"  prince,  et  que  ceux  etablis  par  I'eglise  ne  peuvent  avoir  lieu  qu'autant 
"  qu'ils  sont  admis  par  le  prince." — [Note  181.] 


L.  3.  C.  6.  Sect.  401.    0  Discents.  [245.  a.  245.  b. 

where  such  bastard  continues  the  possession  all  his  life  without  interrup- 
tion, and  ivhere  the  mulier  entreth  and  interrupts  the  possession  of  such 
bastard,  ^c. 

"  A  ND  the  mulier  oust  him.^'     An  estranger  in  the  name  of 
the  mulier  without  his  commandemcnt  cannot  enter  upon 
the  bastard,  for  that  the  bastard  may  gaine  the  estate  and  barre 
the  mulier.     And  therefore  regularly  none  shall  enter  but  the 
mulier,  or  some  other  by  his  commandement.     And  therefore 
Littleton  saith  (and  the  mulier  put  him   out)  no  more  than  in 
the  case  [a]  of  the  lord  Awdleij :  for  there  an  estranger  of  his  [«]  Mich.  38  & 
owne  head  could  not  enter  in  the  name  of  him  that  right  had  to  ^p  Eliz.  in  the 
enter  within  the  five  yeares  to  avoid  the  fine.    But  in  both  those  ^^^  evidence 
cases,  first,  if  the  midier  agree  thereunto  before  the  discent  of  by  the  whole 
the  bastard :  or  secondly,  if  he  that  ricrht  hath  before  the  five  court.    Vide 
yeares  be  past  do  assent  thereunto,  the  claime  is  good,  and  shall    ^^^'^  g^.  ^^j 
avoid  the  estate  both  of  the  bastard  and  of  the  conusee,  as  it  was 
holden  in  the  lord  Aicdleys  case,  quia  omnis  ratiJiahitio  retro-  4  H.  7.  cap. 
trahitur,  &  mandate  (eqiiiparatur,  and  it  standeth  well  with  the 
words  of  the  statute,  so  that  they  pursue  their  title,  &c.  by  way  Vide  Sect.  .334. 
of  action  or  entry;  and  so  is  the  booke  in  [i]  31  77.  8.  to  be  [b]  31  H.  8. 
intended.  Entr.  cong. 

But  in  the  case  of  the  hastard  eigne  which  is  Littleton'' a  case,     ^' 
gardein  in  socage,  or  gardein  in  chivalrie,  may  enter,   for  they 
are  no  strangers,  as  in  another  place  is  plainly  shewed.     If  an 
infant  make  a  feoffment  in  fee,  an  estranger  of  his  owne  head 
cannot  enter  [c]  to  the  use  of  the  infant,  for  the  estate  is  voida-  [c]  Pasc. 
ble.     But  where  an  infant  or  a  man  of  full  age  is  disseised,  an  3y  Eliz.  in 
entrie  by  a  stranger  of  his  owne  head  is  good,  and  vesteth  pre-  Communi  Banco 
gently  the  estate  in  the  infant  or  other  disseisee.     So  it  is  if  10  h.  7.  le! 
tenant  for  life  make  a  feoifmeut  in  fee,  an  estranger  may  enter  7  E.  3.  69. 
for  a  forfeiture  in  the  name  of  him  in  the  reversion,  and  thereby  ^^  ^■^-  ^^• 
the  estate  shall  be  vested  in  him,  et  sic  de  similibus.  45  e.  3. 

[34:5.1       5@°"  "Where  such  bastard  continues  the  possession  n  ass.  11. 
b.     J  without  interruption."    If  the  midicr  entreth  upon  the 
bastard,  and  the  bastard  recovereth  the  land  in  an 
assise  against  the  mulier,  now  is  the  interruption  avoided  ;  and 
if  the  bastard  dieth  seised,  this  shall  barre  the  mulier. 

If  the  bastard  eigne  after  the  decease  of  the  father  entreth,  2  Ass.  9. 
and  the  king  seiseth  the  land  for  some  contempt  supposed  to  be 
committed  by  the  bastard,  for  which  no  freehold  or  inheritance 
is  lost,  but  only  the  profits  of  the  land  by  way  of  seisure,  and 
the  bastard  die,  and  his  issue  is  upon  his  petition  restored  to  the 
possession,  for  that  the  seisure  was  without  cause,  the  midier  is 
barred  for  ever ;  for  the  possession  of  the  king  when  he  hath  no 
cause  of  seisure  shall  be  adjudged  the  possession  of  him  for 
whose  cause  he  seised.  But  if  after  the  death  of  the  father  the 
mxdier  be  found  heire  and  within  age,  and  the  king  seiseth,  in 
that  case  the  possession  of  the  king  is  in  right  of  the  mulier, 
and  vesteth  the  actual  possession  in  the  mulier,  and  consequently 
the  bastard  eigne  is  fore-closed  qf  any  right  fur  ever. 

And  so  it  is  when  the  king  seiseth  for  a  contempt,  or  other 
offence  of  the  father,  or  of  any  other  ancestor ;  in  that  case  if 
the  issue  of  the  bastard  eigne  upon  a  petition  be  restored,  for 
that  the  seisure  was  without  cause,  the  midier  is  not  barred,  for 
the  bastard  could  never  enter,  and  consequently  could  gain  no 
estate  in  the  land,  but  the  possession  of  the  king  in  that  case 

shall 


245.  b.J  Of  Discents.     L.  3.  C.  6.  Sect.  402. 

shall  be  adjudged  in  the  right  of  the  mulier.     And  it  is  to  be 
observed,  that  the  bastard  must  enter  in  vacuum  j^ossessionem, 

PI.  Com.  Parson  and  continue  during  his  life,  without  interruption  made  by  the 

de  Honylane's      mulier. 

case.  91.  ,  .  t      i      i  i 

?,b  11.  6.  24.  "  Interrupts  the  possession  of  such  hasfard,  &c."  If  the  bastard 

21  H.  6.  9.  invite  the  mulier  to  see  his  house,  and  to  see  pictures,  &c.  or  to 

9j  ^  ^  5  dine  with  him,  or  to  hawk,  hunt,  or  sport  with  him,  or  such  like 

5  E.  4.  60.  upon  the  land  descended,  and   the  mulier  commeth  upon   the 

land  accordingly,  this  is  no  interruption,  because  he  came  in  by 
the  consent  of  the  bastard,  and  therefore  the  coming  upon  the 
land  can  be  no  trespasse ;  but  if  the  mulier  commeth  upon  the 
ground  of  his  own  head,  and  cutteth  downe  a  tree,  or  diggeth  the 
soile,  or  take  any  profit,  these  shall  be  interruptions ;  for  rather 
than  the  bastard  shall  punish  him  in  an  action  of  trespasse,  the 
act  shall  amount  in  law  to  an  entry,  because  he  hath  a  right  of 
entry.  So  it  is  if  the  mulier  put  any  of  his  beasts  into  the 
ground,  or  command  a  stranger  to  put  on  his  beasts,  these  doe 
amount  to  an  entr}'';  for  albeit  in  these  cases  the  mulier  doth  not 
use  any  express  words  of  entry,  yet  these,  and  such  like  acts, 
doe  without  any  words  amount  in  law  to  an  entrie ;  for  acts 
without  words  may  make  an  entry,  but  words  without  an  act 
(I'i's.  entry  into  the  land,  &c.)  cannot  make  an  entry  (all  which 
interruptions  are  implied  in  the  said  &c.)  More  shall  be  said 
hereafter  of  interruptions  in  the  chapter  of  Continuall  Claime. 


Sect.  402. 

A  LSO,  if  an  infant  within  age  hath  such  cause  to  enter  into  any  lands 
or  tenements  upon  another,  which  is  seised  in  fee,  or  in  fee  taile  of 
the  same  lands  or  tenements,  if  such  man  who  is  so  seised  dieth  of  such 
estate  seised,  and  the  lands  descend  to  his  issue  during  the  time  that 
the  infant  is  ivithin  age,  such  diseent  shall  not  take  away  the  entry  (2) 
of  the  infant,  but  that  hee  may  enter  upon  the  issue  tvhich  is  in  by  diseent, 
for  that  no  laches  shall  be  adjudged  in  an  infant  within  age  in  such  a  case. 

Brooke,  tit.  "  TF  an  infant  within  age  hath  such  cause  to  enter."     If  a  man 

Diseent,  40.  seised  of  lands  in  fee  die,  his  -wilg  jyrivement  enseint  with  a 

son,  and  a  stranger  abate  and  die  seised,  and  after  the  sonne  is 
borne,  hee  shall  bee  bound  by  the  diseent  (1),  because  hee  at 
the  time  of  the  diseent  had  no  right  to  enter,  and  this  is  to  be 
gathered  upon  these  words  of  Littleton,  hath  cause  to  enter,  which 
at  the  time  of  the  diseent  he  hath  not. 

20  H.  6.  28.  b.         ujg  {^  jjy  diseent,  &c."    Here  is  implyed  any  other  heire,  col- 

15  E  4""'  "        laterall  or  lineall. 

Diseent.  30.  An 


(2)  He  need  not  enter  hastily  after  his  full  age,  but  may  do  it  two  or  three 
years  or  more  after  his  full  age,  but  caveat  that  he  do  not  permit  a  descent 
after  his  full  age  before  his  entry,  for  then  it  will  toll  his  entry.  1  Hep.  140. 
—[Note  183.] 

(1)  A  contrary  doctrine  seems  to  be  asserted  in  Dyer,  94.  b. — [Note  182.] 


L.  3.  C.  6.  Sect.  204:.     Of  Discents.  [246.  a. 

An  infact  is  accounted  in  law  (as  hath  beene  often 

[346. "I   said),  [rf]  untill  he  passeth  the  B@°"age  of  21  yeares,   [d]  Vide  Sect. 
a.     J  and  certaine   privileges  hee   hath  in  respect  of  his  259.  403. 
infancy. 

"No  laches  shall  J)e  adjudged  in  an  infant  within  age  in  such 
a  case." 

And  Littleton  well  added  (m  such  a  case)  that  is,  in  case  of  33  e.  3.  Quar. 
discent,  for  in  some  other  cases  laches  shall  prejudice  an  infant.   Imp.  46. 
As  laches  shall  be  adjudged  in  an  infant  if  he  present  not  to  a  p^^hJo^'u' 
church  within  six  moneths,  for  the   law  respecteth   more  the  350.  b.  380.) 
privilege  of  the  church  (that  the  cure   bee   served)  than   the 
privilege  of  infancy.     And  so  the  publikc  repose  of  the  realme  pi.  Com.  372. 
concerning  men's  freeholds  and  inhei'itances,  shall  be  preferred  (F.  N.  B.  33.  B. 
before  the  privilege  of  infancy,  in  case  of  a  fine,  where  the  time  ^  ^'^P'  g^' ^' 
begins  in  the  time  of  the  ancestor.     So  non-claime  of  a  villaine 
of  an  infant  by  a  yeare  and  a  day,  who  hath  fled  into  ancient 
demesne  (A),  shall  take  away  the  seisure  of  the  infant.     And 
if  an  infant  bring  not  an  appeale  of  the  death  of  his  ancestor 
within  a  yeare  and  a  day,  he  is  barred  of  his  appeale  for  ever, 
for  the  law  respects  more  liberty  and  life  than  the  privilege  of 
infancy.    And  here  it  is  to  be  observed,  that  Littleton  putteth  his 
case,  that  an  infant  shall  enter  upon  a  discent,  when  a  stranger 
dieth  seised,  but  hee  put  it  not  so  before,  in  the  case  of  the 
bastard  eigne.     B.  tenant  in  taile  infeoffeth  A.  in  fee,  A.  hath  (Post.  348.  a. 
issue  within  age  and  dieth,  B.  abateth   and  dieth   seised;  the  357.  a.) 
issue  of  A.  being  still  within  age,  this  discent  shall  binde[e]  the  [e]  11  e.  4.  1,  2. 
infant,  for  the  issue  in  taile  is  remitted;  and  the  law  doth  more  F.  N.  B.  35  M. 
respect  an  ancient  right   in   this  case,  than  the  privilege  of  an 
infant  that  had  but  a  defeasible  estate.    And  it  is  said  [/]  if  the  [/]  35  h.  6.  60. 
king  die  seised  of  lands,  and  the  land  descend  to  his  successor, 
that  this  shall  bind  an  infant,  for  that  the  privilege  of  an  infant 
in  this  case  holds  not  against  the  king(l). 

Sect. 

(A)  See  post,  254.  b.  where  lord  Coke  states  that,  if  a  villoin  remained  in  ancient 
deiueene  a  year  and  a  day,  he  is  privileged. 

(1)  This  and  many  other  passages  in  this  work,  respecting  the  operation  and 
force  of  the  acts  of  infants,  were  fully  considered  in  the  cases  of  Zouch  v.  Par- 
sons, 3  Burr.  1794;  and  May  v.  Hook,  heard  before  lord  chancellor  Bathurst, 
in  1773. — There  being  no  printed  account  of  the  last  case,  it  may  not,  perhaps, 
be  unacceptable  to  the  reader  to  find  an  account  of  it  here. — Ann  May  and  her 
two  sisters  were,  under  their  father's  will,  seised  of  a  considerable  freehold 
estate;  and  pos.sessed  of  a  considerable  leasehold  estate,  as  joint  tenants.  Pre- 
vious to  the  marriage  of  Ann  May  with  John  Hook  the  defendant,  she  being 
then  an  infant,  by  articles  of  agreement  dated  the  28th  of  October  1701,  and 
made  between  her  of  the  first  part,  John  Hook  of  the  second  part,  and  trustees 
of  the  third  part,  it  was  covenanted  and  agreed,  that  the  leasehold  estates  should 
be  assigned  to  John  Hook  for  his  own  use  and  benefit;  and  that  the  freehold 
estates  should  be  settled  on  him  for  life;  and  then  on  her  for  life;  remainder  to 
their  first  and  other  sons  successively  in  tail  male;  remainder  to  their  daughters, 
as  tenants  in  common  in  tail;  remainder  to  John  Hook  in  fee.  And  he  cove- 
nanted to  pay  100^.  to  the  trustees  upon  trust  to  pay  Ann  Hook,  if  she  survived 
him,  the  interest  of  it  for  her  life,  and  after  her  decease  to  divide  it  among  the 
children. — Afterwards  Ann  May  died  under  age.  The  question  was.  Whether 
these  articles  were  in  equity  a  severance  of  the  joint-tenancy  ?     Lord  Chancellor 

Bathurst 


246.  a.]  Of  Discents.      L.  3.  C.  6.  Sect.  403. 


Sect.  403. 

A  LSO,  if  Jmsband  and  wife,  as  in  right  of  the  wife,  have  title  and 
right  to  enter  into  lands  which  another  hath  in  fee,  or  in  fee  tayle, 
and  such  tenant  dieth  seised,  ^c.  in  such  case  the  entry  of  the  husband 
is  taken  aivay  upon  the  heire  which  is  in  by  discent.  But  if  the  hus- 
band die,  then  the  wife  may  well  enter  upon  the  issue  tvhich  is  in  by 
discent,  for  that  no  laches  of  the  husband  shall  turn  the  wife  or  her 
heires  to  any  prejudice  nor  losse  in  such  case,  but  that  the  wife  and  her 
heires  may  well  enter,  where  such  discent  is  eschued  during  the  coverture. 


''  TF  husband  and  wife,  as  in  right  of  the  wife,  have  title  and 
right  to  enter,  &c.  and  such  tenant  dieth  seised,  &c." 
9  H.  7.  24.  a.  These  words  are  generall,  but  are  particularly  to  bee  under- 

2  E.  4.  25.  stood,  viz.  when  the  wrong  was  done   to  the  wife  during  the 

20  II  6  ^'s  h      coverture;  for  if  a  feme  sole  be  seised  of  lands  in  fee,  and  is  dis- 
42  E.  3.  12.  seised,  and  then  taketh  husband ;  in  this  case  the  husband  and 

15  E.  4.  wife,  as  in  the  right  of  the  wife,  have  right  to  enter,  and  yet 

Discent,  30.  ^j^g  dying  seised  of  the  disseisor  in  that  ease  shall  take  away  the 
entry  of  the  wife  after  the  death  of  her  husband ;  and  the  reason 
is  as  well  for  that  shee  herselfe  when  shee  was  sole  might  have 
entred  and  recontinued  the  possession,  as  also  it  shall  be  ac- 
counted her  folly  that  shee  would  take  such  a  husband  which 
would  not  enter  before  the  discent. 

But 


Bathurst,  when  he  made  his  decree  in  this  cause,  observed,  that  the  first  point 
attempted  to  be  established  by  the  counsel  was,  that,  had  Ann  May  been  of 
full  age  when  she  entered  into  the  articles,  they  would  have  amounted  to  a 
severance;  but  that  no  determination  to  that  effect  had  ever  been  made: — That 
the  co-joint-tenants  were  not,  in  this  case,  to  be  considered  as  volunteers,  as 
they  claimed  by  title  paramount;  and  that  their  situation  approached  nearer  to 
that  of  issue  in  tail,  who  claimed  per  form  am  doni,  than  to  that  of  an  heir  at 
law,  who  claims  only  under  his  ancestor: — That  the  utmost  which  the  infanl 
could  do  would  be  an  avoidable  act;  and  that,  of  course,  it  would  be  in  the  dis- 
cretion of  the  court  either  to  give  or  refuse  their  assistance  to  it;  and,  by  a 
parity  of  reason,  it  must  always  be  in  their  power  to  model  his  contracts  at 
their  pleasure : — That  the  contract,  in  the  present  case,  was  not  such  as  the 
court  would  uphold.  Had  the  infant  lived  to  come  of  age,  and  a  bill  been 
filed  against  her  for  a  performance  of  the  articles,  the  court  would  have  them 
set  aside,  and  referred  it  to  a  master  to  draw  new  proposals  for  a  proper  settle- 
ment : — That  as  the  contract  was  not  such  as  would  have  bound  the  infant 
herself,  a  fortiori  it  should  not  bind  the  co-joint-tenants: — That  it  would  be  a 
strange  doctrine,  that  any  act  of  an  infant,  which  is  by  its  nature  avoidable, 
should  sever  the  joint-tenancy,  as,  if  that  were  allowed,  it  would  always  be  in 
the  power  of  the  infant  to  say  whether  the  joint-tenancy  should  be  severed  or 
not;  then,  if  any  of  the  co-joint-tenants  should  die  under  age,  the  infant  might 
avoid  his  own  act,  by  pleading  infra  xtatem,  and  resort  to  his  title  of  survivor- 
ship, which  would  be  a  great  injustice  and  hardship  on  the  co-joint-tenants. 

On  these  grounds  his  lordship  was  of  opinion,  that  the  articles  did  not  amount 
in  equity  to  a  severance  of  the  joint-tenancy. — [Note  184.] 


L.  3.  C.  6.  Sect.  404-5.   Of  Discents.  [246.  b. 

[946.~|  S&"  But  there  if  the  woman  were  within  age  at  the  9  H-  7.  2i. 
b.  J  time  of  her  taking  of  husband,  then  the  dying  seised 
shall  not  after  the  decease  of  her  husband  take  away 
her  entry ;  because  no  folly  can  be  accounted  in  her,  for  that 
shee  was  within  age  when  shee  tooke  husband,  and  after  cover- 
ture she  cannot  enter  without  her  husband  j  all  which  is  implyed 
in  the  said  (&€.) 

"  No  laches  of  the  husband  shall  turn  the  wife,  &c.  to  any  pre-  ^'i*^-  Sect.  492. 
Judice,  &c."  iacAes  signifieth  in  the  common  law,  retchlesnesse,  ^^(.'233  ^ 
or  negligence,  et  negligentia  semper  hahet  infortunmm  comitem.  1  Lev.  266. 
Here  is  a  diversity  to  be  observed,  that  albeit  regularly  no  laches  8  I^ep- 100. 
shall  be  accounted  in  infants,  or  feme  coverts,  as  is  aforesaid,  p]^°23 
for  not  entry  or  clayme  to  avoid  discents,  yet  laches  shall  be  ac- 
counted in  them  for  no  performance  of  a  condition  annexed  to 
the  state  of  the  land.     For  if  a  feme  be  infeoffed  either  before 
or  after  marriage,  reserving  a  rent,  and  for  default  of  payment  a 
re-entrie  ;   in  that  case,  the  laches  of  the  baron  shall  disherit  20  H.  6.  28.  b. 
the  wife  for  ever.     And  so  it  is  Fnl  of  an  infant :  his  laches,  for  ["]  3i  Ass.  p.  17. 
not  performing  of  a  condition  annexed  to  a  state,  eitlier  made  to  pj  7,'^^   '. 
his  ancestor  or  to  himselfe,  shall  barre  him  of  the  right  of  the  10  h.  7. 
land  for  ever.  13  H.  7. 

If  a  man  make  a  feoffment  in  fee  to  another  reserving  a  rent,  |^  ^"  ^*  ^^'    , 
and  if  he  pay  not  the  rent  within  a  moneth,  that  he  shall  double  Fleta,  lib.2. 
the  rent,  and  the  feoffee  dieth,  his  heire  within  age,  the  infant  cap.  50. 
payeth  not  the  rent,  he  shall  not  by  this  laches  forfeit  any  thing. 
But  otherwise  it  is  of  a  feme  covert ;  and  the  reason  and  cause 
of  this  diversity  is,  for  that  the  infant  is  provided  for  by  the  sta- 
tute, [o]  non current  usuruce  contra  aliquem  infra  cetatem  existen',  H  Lo  statute  de 
&c.     But  that  statute  doth  not  extend  to  a  feme  covert,  neither  ^«^'°°'  <=*•  ^• 
doth  that  statute  extend  to  a  condition  of  a  re-entry ;  which  an 
infant  ought  to  performe,  for  the  forfeiture  thereof  cannot  bee 
called  usura. 


*  Sect.  404. 

JRUT  the  court  holdeth,  where  such  title  is  given  to  a  fern  sole,  who 
after  taketh  husband  which  doth  not  enter,  but  suffer  a  discent,  ^c. 
there  otherwise  it  is,  for  it  shall  be  said  the  folly  of  the  wife  to  take  such 
a  husband  ivhich  entered  not  in  time,  ^c. 

n'^mS  is  added,  and  therefore  as  formerly  I  have  done,   I  9  H.  7.  24. 
-L    meddle  not  withall ;  how  belt  the  opinion  is  holden  for  law, 
as  it  appeareth  in  the  section  next  precedent. 


Sect.  405. 


ALSO,  if  a  man  which  is  of  non  sane  memory,  that  is  to  say  in  Latine^ 
qui  non  est  compos  mentis,  hath  cause  to  enter  into  any  such  tene- 
ments, if  such  discent,  ut  supra,  bee  had  in  his  life  during  the  time  that  he 

was 

*  This  Section  is  not  in  L.  and  M.  or  Roh. 
Vol.  II.~19 


246.  b.]  Of  Discents.         L.  3.  C.  6.  Sect.  405. 

was  not  of  sound  memorie,  and  after  dieth,  Ms  heire  may  well  enter 
upon  Mm  wMch  is  in  by  discent.  And  in  tMs  ease  you  may  see  a  case, 
ivliere  the  heire  may  enter,  and  yet  his  ancestor  which  had  the  same  title 
could  not  enter.  For  hee  which  was  out  of  his  memorie  at  the  time  of 
such  discent,  if  he  will  enter  after  such  a  discent,  if  an  action  upon  this 
he  sued  against  him,  he  hath  nothing  to  plead  for  himself e,  or  to  helpe 
Mm,  hut  to  say,  that  he  was  not  of  sane  memorie  at  the  time  of  such  dis- 
cent, ^c.  And  he  shall  not  he  received  to  say  this,  for  that  no  man  of 
full  age  shall  he  received  in  any  plea  hy  the  laiv  to  disahle  his  oivne  per- 
son (pur  ceo  que  nul  home  de  pleine  age  serra  resceive  en  ascun  plee  per 
la  ley  a  *disabler  le  person  demesne),  but  the  heire  may  well  disable  the 
person  of  his  ancester  for  his  oivne  advantage  in  such  case  (pur  son  ad- 
vantage t  demesne  en  tiel  cas),  for  that  no  laches  may  be  adjudged  hy 
the  laio  in  him  which  hath  no  discretion  in  such  case. 

HERE  Littleton  explaineth  a  man  of  no  sound  memorie  to  be 
7wn  compos  mentis.  Many  times  (as  here  it  appeareth)  the 
Sanders,  lib.  4.  Latin  word  explaineth  the  true  sense,  and  calleth  him  not  aniens, 
fo,  127. 182.  demens,  furiosus,  lunaticus,  fatuus,  st^dtus,  or  the  like,  for  non 
Beverley's  case,  compos  mentis  is  most  sure  and  legall  fl). 

Mirror,  cap.  1.  -^  o       \    f 

sect.  9.  ca.  5.  sec*.  1.     Bract,  fo.  166  and  420.     Britton.  fo.  167.  b.  217.  66.     Fleta,  li. 

6  ca.  39.     Fitz.  N.  B.  222.  B.     Staunf.  Prer.  33,  34.    (Hob.  96.    Sid.  112.) 

*  destultifer  et,  added  in  L.  and  M.         f  demesne — del  heire,  X.  and  M. 
and  Roh.  and  Roh. 

(1)  Scotch  Pleading,  anno  61.  case  5.  pages  69  and  70,  and  Sir  Thomas 
Steicart's  case.  Fatui  sive  idiotje  sunt  illi  tantiim,  qui  omni  ratiocinatione  et 
judicio  carent,  tardi,  bardi,  moriones  raacaerones,  qui  inopia  caloris,  et  spiritum 
laborant.  Furor  est  dementia  cum  ferocia,  et  horrenda  actionum  vehementia. 
Fromanus  de  jure  furiosorum,  p.  6.  Furor  dividitur  in  continuum  ',  ubi  animus 
continua  mentis  agitatione  semper  accenditur ;  et  interpolatum  sen  intervalla- 
tum  :  qui  dilucida  habent  intervalla ;  quorum  furor  habet  inducias,  et  quos 
morbus  non  sine  laxamento  aggreditur;  qui  testamentum  facere  possunt ;  & 
quos  furor  stimulis  suis  variatis  vicibus  accendit.  In  these  fury  and  madness  is 
hut  an  ague  or  a  disease  ;  in  the  others,  it  is  temperament  and  complexion.  Again 
among  those  icho  have  lucid  intervals,  it  may  he  fit  to  distiiiguish  hetioeen  those 
who  have  only  remissionem  seu  adumbratam  quietem,  and  those  who  have  inter- 
missionem  seu  resipiscentiam  integram.  Two  witnesses  deposing  sanae  menti, 
are  preferred  and  believed  before  an  hundred  touching  fury  and  madness.  Me- 
lancholy and  hypochondriac  vapours  are  like  storms  at  sea,  which,  though  they 
dliifnrh  for  a  while,  yet  they  do  not  hinder  the  returning  to  the  former  calm  ; 
semel  furibundus,  semper  furibundus  prsesumitur ;  and  therefore  ichere  the 
question  is  of  a  fact  done  lucido  intervallo,  ichich  may  be  cither  by  remission  or 
intermission,  it  is  not  enough  to  shoic  the  act  teas  actus  sapienti  conveniens,  yb?- 
that  may  happen  many  ways  ;  but  it  must  be  p)rovtd  to  be  actus  sapientis,  and  t<> 
proceed  from  judgment  aiul  deliberation,  else  the  p)res%imption  contimics.  Lord 
Nott.  MS. — On  the  general  law,  repecting  lunacy,  and  the  acts  of  lunatics  much 
useful  information  may  be  obtained  from  Mr.  Ridgway's  report  of  the  great 
cause  of  Hume  v.  Burton,  usually  called  Lord  Ely's  case,  adjudged  in  the 
House  of  Lords  in  Ireland,  on  the  24th  March  1784 ;  (Ridgway's  Cases  in 
Parliament,  vol.  1.  p.  16.  and  the  six  Appendixes),  and  from  lord  Thurlow'.'< 
argument,  in  pronouncing  his  decree,  in  the  case  of  the  Attorney-General  v. 
Parnther,  3  Rro.  Cha.  Ca.  441.— [Note  185.] 


L.  3.  C.  6.  Sect.  405.     Of   Discents.  [247.  a. 

[347. 1      Non  compos  mentis  is  B@°  of  four  sorts ;  1.  Ideota,  (2  Inst.  14.) 
a.     J  which  from  his  nativitie,  by  a  perpetuall  infirmitie,  is 
lion  compos  mentis.  2.  Hee  that  by  sicknesse,  griefe,  or 
other  accident,  wholly  loseth  his  memorie  and  understanding. 

3.  A  lunatic  that  hath  sometime  his  understanding  and  some-  Lib.  4.  124,  125. 
time  not,  aliquando  gaudel  lucidis  mtervaUis,  and  therefore  he  is  Beverleye's 
called  7ion  compos  mentis,  so  long  as  he  hath  not  understanding.  ^^^^' 
Lastly,  hee  that  by  his  owne  vitious  act  for  a  time  depriveth 
himselfe  of  his  memorie  and  understanding,  as  he  that  is  drunken. 
But  that  kinde  of  nan  compos  mentis  shall  give  no  privilege  or 
benefit  to  him  or  to  his  heires.     And  a  discent  shall  (1)  take 
away  the  entrie  of  an  idiot,  albeit  the  want  of  understanding  was 
perpetuall ;  for  Littleton  speaketh  generally  of  a  man  of  non  sane 
memorie.    So  likewise  if  a  man  that  becomes  non  compos  mentis 
by  accident,  as  is  aforesaid,  be  disseised  and  suffer  a   discent, 
albeit  he  recover  his  memorie  and  understanding  againe,  yet  hee  (8  Rep.  170.) 
shall  never  avoid  the  discent;  and  so  it  is  d  fortiori  oi  one  that 
hath  lucida  intervalla.      As  for  a  drunkard  who  is  voluntarius 
dcemon,  he  hath  (as  hath  beene  said)  no  privilege  thereby,  but 
what  hurt  or  ill  soever  he  doth,  his  drunkenesse  doth  aggravate  (Pio.  Com.  19.) 
it :    Omne  crimen  ebrietas  &  incendit,  &  detegit. 

If  an  ideot  make  a  feoffment  in  fee,  he  shall  in  pleading  never  (4  Rep.  12,3.  b. 
avoid  it  by  saying  that  hee  was  an  ideot  at  the  time  of  his  feoff-  ^^  -^  &'l^^h 
ment,  and  so  had  beene  from  his  nativitie.     But  upon  an  office  Abb.  Ass.  89.  b. 
found  for  the  king,  the  king  shall  avoid  the  feoffment,  for  the  F.  N.  B.  202. 
benefit  of  the  ideot,  whose  custodie  the  law  giveth  to  the  king.    i'^rA ''^.'     os 

So  it  is  of  a  non  compos  mentis  by  accident,  and  of  him  qui  f^,!  gg.' 
gandet  lucidis  intervallis,  if  an  estate  be  made  during  his  lunacie  :  25  Ass.  pi.  4. 
for  albeit  the  parties  themselves  cannot  be  received  to  disable  ^^  -^^^-  P^-  ^''• 
themselves,  yet  twelve  men  upon  their  oathes  may  finde  the  truth 
of  the  matter.  But  if  any  of  them  alien  by  fine  or  recoverie,  this  32  E.  3.  tit. 
shall   not   only  binde  himselfe,  but   his   heires  also  (2).      As  ^"'"^  ^^/•^^'^* 

•'  '  ^    ^  Staundf.  Pr.  34. 

F.  N.  B.  202.  A.     Beverleye's  case,  lib.  4.  126, 127,  128. 

amongst 

(1)  In  all  the  editions  except  the  first,  the  word  not  is  here  erroneously 
inserted. 

(2)  Lord  Hobart  observes  in  the  case  of  Needier  v.  Bishop  of  Winchester,, 
that  in  these  cases  "the  law  finds  these  persons  not  so  disabled,  nor  admits  the 
"  averment  of  such  disablement,  because  it  is  certified  by  invincible  and  indis- 
"  putable  credit  of  the  judge,  that  they  were  perfect  and  able  persons.  And  so 
"  here  is  a  law  of  policy  that  doth  not  cancel  the  law  of  nature,  but  doth  only 
"  bound  it  in  point  of  form  and  circumstance ;  it  being  better  to  admit  a  mischief 
"  in  particular,  even  against  the  law  of  nature,  than  an  inconvenience  in  general : 
"  and  it  is  not  the  law  of  nature  to  admit  an  improbable  surmise  against  au- 
"  thentic  record  or  evidence."  Hob.  224. — Sir  Ed.  Coke  observes,  post.  380.  b. 
that  the  only  mode  by  which  an  infant  can  reverse  a  fine  levied  by  him,  is  by 
appearance  in  court  during  his  infancy,  and  being  inspected  by  the  judges ; 
no7i  testium  testimonio,  autjurntorum  vered  icto,  scdjndicis  inspcctione  sol  ummodo: 
the  judges  may,  however,  inform  themselves  in  cases  of  this  kind  by  means  of 
witnesses,  church  books,  or  any  other  kinde  of  evidence.  It  appears  a  great 
hardship  that  infants  should  not  be  permitted  to  reverse  their  fines  after  they 
attain  their  full  age;  and  it  seems  unaccountable  that  the  law,  which  will  not 
permit  them  to  do  it  after  they  attain  their  full  age,  should  permit  them  to  do  it 
before  that  age.  The  objection  that  no  averment  can  be  made  against  any  fact 
which  is  upon  record,  applies  as  much  to  them  before  their  attaining  their  full 

age 


Vide  Br.  tit. 
Dum  fuit  infra 
aetatem,  5. 


247.  a.  247.  b.J         Of  Discents.     L.  3.  C.  6.  Sect.  405. 

amongst  other  things  requisite  to  be  knowen,  these  cases  you 
shall  fiude  at  large  in  my  Commentaries,  whereunto,  for  brevitie, 
I  referre  the  reader :  upon  all  which  bookes  there  have  beene 
foure  several  opinions  concerning  the  alienation,  or 
other  act  of  aOO^man  that  isnon  compos  mentis,  &c.  ["34: 7". 1 
For,  first,  some  are  of  opinion,  that  he  may  avoid  his  L  ^-  J 
owne  act  by  entrie,  or  plea.  Secondly,  others  are  of 
opinion,  that  hee  may  avoid  it  by  writ,  and  not  by  plea.  Thirdly, 
others,  that  he  may  avoid  it  either  by  plea  or  by  writ ;  and  of 
this  opinion  is  Fitzherhert,  in  his  Natura  Brevium,  nhi  supra. 
And  Littleton  here  is  of  opinion,  that  neither  by  plea  nor  by  writ 
nor  otherwise,  he  himselfe  shall  avoid  it,  but  his  heire  (in  respect 
his  ancestor  was  non  comp>os  mentis)  shall  avoid  it  by  entrie,  plea, 
or  writ.  And  herewith  the  greatest  authorities  of  our  bookes 
agree;  and  so  was  it  resolved  with  Littleton  in  Beverley's  case ; 
[?•]  where  it  is  said,  that  it  is  a  maxim  of  the  common  law,  that 
the  partie  shall  not  disable  himselfe.  But  this  holdeth  only  in 
civil  causes ;  for  in  criminall  causes,  as  felonie,  &c.  the  act  and 
wrong  of  a  madman  shall  not  be  imputed  to  him,  for  that  in 
those  causes,  actus  non  facit  reum,  nisi  mens  sit  rea,  and  he  is 
amens  [id  est)  sine  mente,  without  his  mind  or  discretion  ;  and 
furiosus  solo  furore  punitur,  a  madman  is  only  punished  by  his 
madnesse.  And  so  it  is  of  an  infant,  untill  he  be  of  the  age  of 
fourteene,  which  in  law  is  accounted  the  age  of  discretion. 


[r]  Lib.  4. 
fol.  126,  127. 
(Plo.  19.  a. 
F.  N.  B.  232.) 


26  Ass.  27. 

21  H.  7.  .SI. 
Staundf.  16,  b. 
8  E.  2.  Coron. 
412.  414.  351. 

22  E.  3. 
ibid.  224. 
Beverley's  case, 
ubi  supra 


''  And  in  this  case  you  may  see  a  case,  &c."  And  though 
Littleton  saith  (one  case),  yet  other  cases  may  be  found  to  the 
same  end.  For  if  there  be  grandfather,  father,  and  son,  and  the 
father  disseise  the  grandfather,  and  make  a  feoffment  in  fee, 
F.  N.  B.  202.  D.  -without  warrantie,  the  grandfather  dieth,  albeit  the  right  de- 
V^  3  E  3  scend  to  the  father,  he  cannot  by  this  right  descended  enter 
tit. Entrie  Cong,  against  his  owne  feoffment;  but  if  he  die  the  sonne  shall  enter 
statham.  and  avoid  the  estate  of  the  feoffee. 

1  o  "P   4  8 

39  H.  6.  4.     Abbr.  Ass.  89.     39  H.  6.  43.     (Post.  265.) 

15  E.  4.  So  if  the  grandfather  be  tenant  in  taile,  and  the  father  disseise 

tit.  Discent.  30.    jjjjjj^  ^^^  supra,  mutatis  mutandis. 

If  lands  be  given  to  two  and  to  the  heirs  of  one  of  them,  ho 
that  hath  the  fee  simple  shall  not  have  an  action  of  waste  upon 

the 


age  as  after.  But  the  contrary  has  been  too  often  established  to  be  now  called 
in  question.  See  Ann  Hungate's  case,  12  Rep.  122.  Warcombe  and  Carrel's 
case,ib.  124.  Herbert  Perrot's  case,  2  Vent.  30.  Hutchinson's  case,  3  Lev.  36. 
Requishe  and  Requishe,  Bulst.  p.  2.  320.  Sarah  Griffith's  case,  12  Mod.  444. 
With  respect  to  the  fines  levied  by  idiots  and  lunatics,  see  12  Rep.  124.  Hugh 
Lewing's  case,  10  Rep.  42.  b.  But  infant  trustees  within  the  stat.  7  Ann.  c.  19. 
may  both  levy  fines  and  suffer  common  recoveries.  See  3  Atk.  479.  559.  Com. 
Rep.  615.  Barnes's  Cases  of  Pract.  217.  See  also  Fitz.  Nat.  Bre.  202.  where 
much  argument  is  used  to  show,  that  a  non  ccnnpos  may  plead  his  disability  to 
avoid  his  own  acts  as  well  as  an  infant;  and  2  Black.  Com.  ed.  5.  p.  291.  But 
in  Stroud  v.  Marshal,  Cro.  Eliz.  398.  debt  upon  obligation,  the  defendant 
pleaded,  that  at  the  time  of  the  obligation  made,  he  was  de  non  sane  memory : 
and  it  was  thereupon  demurred,  and  adjudged  to  be  no  plea;  for  he  cannot 
save  himself  by  such  a  plea ;  and  the  opinion  of  Fitzherbert  was  held  not  to 
be  law.— [Note  186.] 


L. 3.  C.  6.  Sect.  406-7.     Of  Discents.       [247.  b.  248.  a. 

the  statute  of  Gloucester,  against  the  joyntenant  for  life,  but  his  (Ant.  53.  b.) 
heire  shall  maintaine  an  action  of  waste  against  him,  upon  the  200.  b.) 
statute  of  Gloucester;  so  the  heire  shall  maintain3  that  action 
which  the  ancestor  could  not. 


Sect.  406. 

^iVi>  if  such  a  man  of  non  sane  memorie  make  a  feoffment,  ^c.  he 
himselfe  cannot  enter  (11  *  mesme  ne  poit  enter),  tior  have  a  writ 
called  Dum  non  fuit  compos  mentis,  &c.  causa  qua  supra ;  but  after  his 
death  his  heire  may  ivell  enter  (mes  apres  f  la  mort  son  heire  bien  poit 
enter),  or  have  the  said  tvrit  of  Dum  non  fuit  compos  mentis  at  his  choice.X 
The  same  laio  is  where  an  infant  within  age  maketh  a  feoffment,  and 
dieth,  his  heire  may  enter,  or  have  a  writ  of  Dum  fuit  infra  getatem,  &c. 

^*  Il/JAKE  a  feofment,  d^c."     Or  any  other  like  conveyance  in 
pais  ;  but  fines  and  other  assurances  of  record  are  not  im- 
ply ed  in  this  i&c). 

''  The  same  law  is  where  an  infant."  This  is  true,  as  to  the 
bringing  of  a  Dum  fuit  infra  cetafem,  &c.  but  without  question 
the  infant  in  that  case  might  have  entered,  as  it  appeareth  in 
the  next  Section  (1). 

"  Writ  of  Dum  non  fuit  compos  mentis."  This  writ  (as  it  ap- 
peareth by  our  author)  lieth  for  the  heire  of  him  that  was  nori 
compos  mentis,  and  not  for  himselfe;  but  a  Dum  fuit  infra  a'ta- 
tem  lieth  as  well  for  the  ancestor  himself  after  his  full  age,  as  for 
his  heire. 


[^r-] 


fi^Sect.  407. 


ALSO,  if  I  be  ^  disseised  by  an  infant  within  age,  ivho  alieneth  to 

another  in  fee,  and  the  alienee  dieth  seised,  and  the  lands  descend  to 

his  heire,  \\  being aji infant ivithin age,  my  ejitrie  is  taken  away,^^c.  \{Vj\. 

Sect. 

*  mesme  not  in  L.  and  M.  or  Roh.  §  disseised  not  in  Roh.  but  in  L. 

f  la — sa,  i.  and  M.  and  Roh.  and  M. 

j  &c.  added  in  L.  and  M.  and  Roh.  ||  and  added  in  L.  and  M.  and  Roh. 

— The  rest  of  this  Section  not  in  L.  *|  &c.  not  in  L.  and  M.  or  ftoh. 
and  M.  or  Roh. 


(1)  See  the  observation  of  Mr.  Dunning  on  this  passage  in  his  argument  in 
the  case  of  Zouch  ex  demiss.     Abbot  and  Ilallett  v.  Parsons,  3  Burr.  1794. 

(1)  \.  The  original  text  of  section  407,  is  ^^  Item,  si  je.o  sue  disseisi  per  mt 
enfeant  deins  age,  lequel  aliena  a  un  auter  en  fee,  et  Valienee  devie  seisi,  et  les 
tenements  descendent  a  son  heir,  esteant  U  enfant  deins  age,  mon  entry  est  tolle,  dx." 
It  is  apprehended,  that,  on  comparing  the  text  with  the  version,  it  will  be  found, 
that  lord  Coke  has  given  a  wrong  translation  of  Littleton.    In  this  and  the  next 

section, 


248.  a.]  Of  Discents.      L.  3.  C.  6.  Sect.  408,  409. 


Sect.  408. 

7?  UT  if  the  infant  within  age  enter  upon  the  heire  which  is  in  hy  die- 

cent,  (que  est  §  eins  per  discent),  as  he  ivell  may,  for  that  the  same 

discent  was  during  his  nonage  (pur  ceo  que  ||  mesme  le  discent  fuit 

durant  son  nonage),  theii  I  may  ivell  enter  upon  the  disseisor,  because 

hy  his  entrie  he  hath  defeated  and  taken  away  the  discent. 

Vide  the  next     TTERE  it  appeareth,  that  the  entrie  of  the  infant  is  lawfull, 

Sect,  following.    XI  and  giveth  advantage  to  the  disseisee  to  enter  also,  because 

the  discent,  which  was  the  impediment,  is  avoided.  And  it  is  to 

be  observed,  that  if  the  discent  be  cast,  the  infant  beiog  within 

43  E.  3.  age,  he  may  enter  at  any  time,  either  within  age,  or  after  his 

tit  Entr.  Cong,    full  age. 

^9^fi'  h^*  ^'  -^^  ^^  ^*  ^^  ^^  ^^  infant  make  a  feoffment,  &c.  he  may  enter 

F.  N.  Jb.  192.       either  within  age,  or  at  any  time  after  his  full  age,  and  so  in 
45  E.  3.  21.         both  cases  may  his  heire. 


Sect.  409. 

TTV  the  same  manner  it  is,  where  I  am  disseised,  and  the  disseisor  make 
a  feoffment  in  fee  upon  condition,  and  the  feoffee  die  of  such  estate 
seised,  1 1  may  not  enter  upon  the  heire  of  the  feoffee  (jeo  ne  purroy** 
my  enter  sur  ff  I'heire  le  feoffee):  hut  if  the  condition  he  hroJcen,  so  as 
for  this  cause  the  feoffor  enter  upon  the  heire,  now  I  may  well  enter, 
for  that  when  the  feoffor  or  his  heires  enter  for  the  condition  hroken, 
the  discent  is  utterly  defeated,  ^c.  %% 

Vide  the  Sect.  T^HE  reason  hereof  is  apparent,  for  cessante  cansd,  cessat  can- 
next  precedent.  J.  satum.  Tenant  in  capitc  maketh  a  feoffment  in  fee  to  the 
?[^298^299  "^^  °^  ^^^  feoffee  and  his  heires,  untill  the  feoffor  pay  an  hundred 
(Ant.  5.'  395.)      pounds  to  him  or  his  heires,  the  feoffee  dieth  his  heire  within  age, 

now 

§  eins — heire  L.  and  M.  and  Boh.  **  my  not  in  L.  and  M.  or  Roh. 

11  mesme  not  in  L.  and  M.  hut  in  ff  I'heire — la  terre  L.  and  M.  and 

Roh.  Roh. 

^  &c.  added  in  L.  and  M.  and  Roh.  ||  &c.  not  in  L.  and  M.  or  Roh. 


section,  Littleton  puts  the  case  of  a  person  disseised  by  an  infant,  who  aliens 
the  land  in  fee,  and  the  alienee  dies,  the  infant  disseisor  being  still  under  age. 
A  descent  is  thereby  cast,  which  takes  away  the  entry  of  the  disseisee;  but  the 
alienation  being  made  by  an  infant,  is  voidable  by  his  entry,  and  if  the  descent 
happens  during  his  infancy,  it  does  not  affect  his  right  of  entry.  He  may 
therefore  enter  notwithstanding  the  descent ;  and,  if  he  does  enter,  the  right  of 
entry  of  the  disseisee  is  revived.  It  is  obvious,  that  the  point  of  this  case  is, 
not  that  the  heir  of  the  alienee  is  an  infant  within  age,  as  lord  Coke  translates 
it,  but  that,  at  the  time  of  the  descent,  the  infant  disseisor  still  continues  an 
infant.  The  words,  esteant  Venfant  deins  aye,  should  therefore  be  translated,, 
"the  infant  being  under  age." — [Note  187.] 


L.  3.  C.  6.  Sect.  410.        Of  Discents.        [248.  a.  248.  b. 

now  hath  the  king  the  wardship  of  the  bodie,  and  is  intituled  to 
the  gard  of  the  land.  But  if  the  feoifor  pay  the  hundred  pounds 
according  to  the  limitation,  the  wardship  is  devested,  both  for 
the  body  and  the  land,  and  so  it  is  in  case  of  a  condition  :  for,  as 
Littleton  here  saith,  the  discent,  which  is  the  cause  of  wardship, 
is  utterly  defeated.  And  by  these  two  last  cases  which  Littleton 
hath  here  put,  it  appeareth,  that  there  is  no  difference,  where  the  (Ant.  76.  b.) 
discent  is  disaffirmed  by  a  right  paramount,  as  where 

[348. "I   the  state  was  never  J6Sr  lawfuU  (as  in  the  case  of  an 
b.     J   infant,)  and  where  a  discent  is  affirmed  for  a  time, 
the  estate  being  lawfuU,  and  being  after  defeated  by 
matter  ex  post  facto,  by  a  title  of  re-entry. 


Sect.  410. 

A  LSO,  if  I  he  disseised,  and  the  disseisor  hath  issue  and  entreth  into 
■^  religion,  hy  force  whereof  the  lands  descend  to  his  issue,  in  this  case 
I  may  well  enter  upon  the  issue,  and  yet  there  tvas  a  discent.  But  for 
that  such  discent  eommeth  to  the  issue  by  the  act  of  the  father,  scilicet, 
for  that  he  entred  into  religion,  ^-c.  and  the  discent  came  not  unto  him  by 
the  act  of  Crod,  (scilicet)  by  death,^  cj-c.  my  entry  is  congeable.  ^  For  if  I 
arraigne  an  assise  of  novel  disseisin  against  my  disseisor,  albeit  he  after 
enter  into  religion,  this  shall  not  abate  my  writ,  but  my  writ  {notioith" 
standing  this)  shall  stand  in  his  force,  and*  my  recovery  against  him 
shall  bee  good,  f  And  by  the  same  reason  the  discent  which  eommeth 
to  his  issue  by  his  own  act,  shall  not  take  from  me  my  entry,  S^c. 

"  TpJSfTRETHinto  religion,  &c."     Here  is  implied  profession.  Vide  Sect.  200. 

This  discent  shall  not  barre  the  entry  of  the  disseisee,  for  (^°t- 122.) 
that  the  discent  eommeth  by  the  deed  of  the  father,  because  he 
entred  into  religion,  wherein  there  is  an  excellent  point  worthy 
of  observation  :  for  albeit  the  entry  into  religion  make  not  the 
discent,  but  the  profession,  whereof  you  have  read  before,  Sect. 
200,  yet  here  you  may  learne  by  Littleton  that  the  law  respects 
the  originall  act,  and  that  is,  his  entry  into  religion,  which  is  (Ant.  126.  b. 
his  owne  act,  whereupon  the  profession  followed  ;  whereby  the  '^^^^^'  qj  v 
discent  happened;  for  Cujmque  rei potissima  pars,  j'^'inci^iium 
est.    And  againe,  Origo  rei  impici debet,  whereof  you  shall  make 
great  use  in  reading  of  our  bookes.    [*]  Here  Littleton  attributeth  [*]  Vid.Pl.Com. 
the  cause  of  the  discent  to  his  entry  into  religion,  which  was  his  ^*^®  ^^*^®'^ 
owne  act,  whereas  a  discent  doth  not  take  away  an  entry  unlesse  c'e-'s.  41,  &c. 
it  eommeth  by  death,  which,  as  Littleton  saith,  is  the  act  of  G-od, 
and  no  glorious  pretext  of  an  act  (no,  though  it  bee  of  religion) 
shall  work  a  wrong  to  a  stranger,  that  hath  right,  to  barre  him 
of  his  entrie.     But  it  is  said,  that  in  the  case  of  the  bastard 
eigne,  and  mulicr  jmisiie,  such  a  discent  shall  bind  the  mulier,  lo  E.  .3.  55. 
as  before  hath  beene  said,  and  such  an  heire  that  eommeth  in  (Ant.  244.) 
by  such  a  discent  shall  have  his  age. 

"  For 

*  my  recovery  not  in  L.  and  M.  or         f  And  not  in  L.  and  M.  orRoh^ 
Roh. 


248.  b.  249.  ?.]  Of  Discents.       L.  3.  C.  6.  Sect.  411. 

3  H.  6.  41.  «  For  if  I  arraigne  an  assise,  dx."    Nbta,  if  a  man  be  tenant 

18  E  4  19  ^^  defendant  in  a  reall  or  personall  action,  and  hanging  the 

9  E.  4.  25.  52.  suit  the  tenant  or  defendant  entreth  into  religion,  by  this  the 

7  E.  4. 15.  writ  is  not  abated,  because  it  is  by  his  owne  act.     And  so  it  is 

9^  p  \  \t'  ^^  ^  resignation ;  but  otherwise  it  is  of  a  deposition,  or  depriva- 

46  E.  3!  25!  tion,  because  he  is  expelled  by  judgment,  and  yet  his  offence, 

30  E.  1.  &c.  was  the  cause  thereof,  sed  in  prc€sumptione  legis,  Judicium 

Bnefe,  885.  redditur  in  invitum. 
BractOD,  hb.  4. 
fo.  189  &  lib.  5. 

fo.  414.  "  From  me  my  entry,  &c."     Here  is  implyed,  or  any  of  my 

22_R-2.  heires. 

Briefe,  936. 
15  Ass.  pi.  8, 


fi^  Sect.  411.  p^9.-j 

A  LSO,  if  I  let  unto  a  man  certaine  lands  for  the  terme  of  twentyyeares, 
and  another  disseiseth  me,  and  oust  the  termor,  and  die  seised,  and 
the  lands  descend  to  his  heire,  I  may  not  enter  ;  and  yet  the  lessee  for 
yeares  may  well  enter,  because  that  by  his  entry  hee  doth  not  ouste  the  heire 
who  is  in  by  diseent  of  the  freehold  which  is  descended  unto  him,  but  only 
*  clayyneth  to  have  the  lands  for  terme  of  yeares,  ivhich  is  no  expulsion 
from  the  freehold  of  the  heire  who  is  in  by  diseent  (lequel  n'est  f  pas 
expulsement  de  le  franktenement  del  heire  que  est  eins  per  diseent). 
But  otherwise  it  is  where  my  tenant  for  terme  of  life  is  disseised  (ou  mon 
tenant  a  terme  de  vie  est  J  disseisie),  causa  patet,  &c.  H  (1) 

"  fpOR  the  terme  of  twenty  yeares."  It  is  cleere  that  a  diseent 
shall  not  take  away  the  entrie  of  a  lessee  for  yeares,  as  our 
author  here  saith,  nor  of  a  tenant  by  elegit,  or  tenant  by  statute 
merchant,  or  such  like,  as  have  but  a  chattle  and  no  freehold ; 
and  the  reason  is,  for  that  by  their  entry  upon  the  heire  by  dis- 
eent, they  take  no  freehold  (which,  as  often  hath  bin  observed,  is 
so  much  respected  in  law)  from  him ;  but  otherwise  it  is  of  an 
estate  for  life,  or  any  higher  estate.  And  as  a  diseent  of  a  free- 
hold and  inheritance  shall  take  away  the  entrie  of  him  that  right 
hath  to  a  freehold,  or  inheritance,  so  a  diseent  of  a  freehold  and 
inheritance  cannot  take  away  the  entry  of  him  that  hath  but  a 
chattle,  for  that  no  diseent  or  dying  seised  can  be  of  the  same. 

(2)  A  man 

*  daymeth  not  in  L.  and  M.  or  \  disseisie — seisie,  &c.  L.  and  M. 
Koh.  and  Roh. 

■\  pas  not  in  L.  and  M.  or  Roh.  \\  &c.  not  in  L.  and  M.  or  Roh. 

(1)  A  lease  is  considered  as  a  covenant  real,  that  binds  the  possession  of 
lands  into  whose  hands  soever  it  comes,  if  the  lands  be  not  evicted  by  a  superior 
title;  yet  the  termor  has  not  the  freehold  in  him,  but  holds  the  possession  as 
bailiff  of  the  freeholder,  nomine  alicno,  by  virtue  of  the  obligation  of  the 
covenant.  Now  then,  if  the  termor  enters  before  the  descent,  he  revests  the 
freehold  in  the  disseisee,  who  has  the  right  of  possession ;  but  if  he  enters 
after  the  descent,  then  he  can  only  hold  in  the  name  of  the  freeholder,  who 
has  the  present  right  of  possession,  which  is  the  heir  of  the  disseisor.  Gilb. 
Ten.  35.— [Note  188.] 


L.  3.  C.  6.  Sect.  412.     Of  Discents.        [249.  a.  249.  b. 

(2)  A  man  seised  of  an  advowson  in  fee  grants  three  avoyd-  (See  2^  Roll. 
auces  one  after  another,  and  after  the  church  becommeth  void,  jj^[^'  "^22  323. 
and  the  grantor  presents,  and  his  clarke  is  admitted  and  insti-  5  Rep.  57. 102.} 
tuted,  and  after  the  church  becomes  void  againe,  the  grantee  may 
present  to  the  second  avoydance,  for  that  he  was  not  put  out  of 
the  possession  thereof;  for  as  the  lessor  having  the  freehold  and 
inheritance  cannot  disseise  his  lessee  for  years,  having  but  a 
chattle,  that  any  discent  may  be  cast  to  take  away  his  entry  (as 
Littleton  here  saith) ;  so  in  the  said  case  the  grantor  hath  the 
franktenement  and  fee  of  the  advowson  rightfully  so  as  he  cannot 
make  any  usurpation,  to  gaine  any  estate,  or  to  put  the  grantee 
so  out  of  possession  as  that  he  should  not  present,  no  more  than 
the  lessee  for  yeares  in  this  case,  to  enter.  Also  in  respect  of  the 
privitie  that  is  between  them,  the  usurpation  of  the  grantor  shall 
not  put  the  grantee  out  of  possession  for  the  two  latter  avoyd- 
ances.     And  this  was  resolved  [a]  by  all  the  judges  of  the  court   H  l^'l-  iS.Ehz. 
of  common  pleas,  which  I  myselfe  hoard  and  observed.  blinco!"^ 


Sect.  412. 


ALSO^  it  is  said,  that  if  a  man  he  seised  of  lands  in  fee  hy  occupation  in 

time  of  tuarre,  and  thereof  dietli  seised  in  the  time  of  loarre,  and  the 

tenements  disecnd  to  his  heire,  such  disee7it  shall  not  oust  any  man  of  his 

entry ;  and  of  this  a  7nan  may  see  in  a  plea  upon  a  writ  of  aiel,  1  E.  2. 

"  T)Y  occujmtion  in  time  ofwarre." 

First,  it  is  necessarie  to  be  knowne  what  shall  bee  said 
time  of  peace,  tempus  pads ;  and  what  shall  be  said   tempics  (4  Inst.  125.) 
belli,  sive  guerrce,  time  of  warre.      Tempus  pads  est 

[Q4:9.~|    Q:^  quando  cancellaria,  (&  alioi  cur  ice  regis  simt  apertce,  Inter  breviade 
b.      J   quihuslexjiehatcuicunque^irout  fieri consuevit.  And  so  """^g  j  &Pasch. 
it  was  adjudged  in  the  case  of  Roger  Mortimer  and  of  28  E.  3.  inter 
Thomas  earle  of  Lancaster.    Utriim  terra  sit  guerrina  necne,  natu-  atljudicata  co- 
raliter  debet  j'udicari per  7-ecorda.  regis,  (&  eorum,  qui  curias  regis  l^-^-J^^i^^  The- ' 
per  legem  terrce  custodiunt,  &  gubernant,  sed  non  alio  modo.         gaur.  Paseh. 

39  E.  3.  inter  ajiidicata  coram  rege  in  Thesaur.  lib.  2.  fol.  92.    (Cro.  Car.  71.) 
1-4  E.  3.  tit.  Scire  facias,  122.  but  more  fully  in  the  record  at  largo. 

And  therefore  when  the  courts  of  justice  be  open,  and  the 
judges  and  ministers  of  the  same  may  by  law  protect  men  from 
wrong  and  violence,  and  distribute  justice  to  all,  it  is  said  to  be 
time  of  peace.  So,  when  by  invasion,  insurrection,  rebellions,  or 

such 


(2)  Hob.  322,  323.  sir  William  Elvis's  case.  This  very  case  was  the  prin- 
cijjal  point ;  and  there,  by  Ilobart,  Warhurton,  and  Winch,  it  was  adjudged 
contra,  that  usurpation  by  the  grantor  puts  the  grantee  out  of  possession,  and  gets 
all  that  rcas  granted  out,  Hutton  disscnticnte.  But  it  a2)pears  that  this  case  is 
good  law,  and  that  Hutton  erravit.  Ilil.  12  Car,  C.  B.  Legge  v.  Archer.  A 
man  leased  an  advowson  for  years,  and  then  presented  ;  this  was  rided  to  he  no 
usurpation,  but  plenarti/  pro  hac  vice  ;  this  case  is  cited  I.  8,  ustirjmtion  5.  idque 
ratione  privity,  ut  inter  coparceners,  and  because  it  is  against  his  own  act.  8 
Rep.  Damport's  case.     Lord  Nott.  MSS. — [Note  189.] 


249.  b.]  Of  Discents.       L.  3.  C.  6.  Sect.  412. 

such  like,  the  peaceable  courts  of  justice  is  disturbed  and  stopped 
so  as  the  courts  of  justice  be  as  it  were  shut  up,  et  silent  legis 
inter  arma,  then  it  is  said  to  be  time  of  warre.  And  the  triall 
hereof  is  by  the  records,  and  judges  of  the  court  of  justice;  for 
by  them  it  will  appeare  whether  justice  had  her  equall  course 
of  proceeding  at  that  time  or  no,  and  this  shall  not  be  tried  by 

If  a  man  be  disseised  in  time  of  peace,  and  the  discent  is  cast 
in   time  of  warre,  this  shall  not  take  away  the  entry  of  the 
disseisee. 
Bracton,  lib.  4.         Item  tempore  pads,  quod  dicitur  ad  differentiam,  eorum  quce 
fol.  240.  fuerunt  tempore  belli,  quod,  idem  est,  quod  tempore  guerrino,  quod 

nihil  differt  d  temp)ore  juris,  &  injuriae  ;  est  enim  tempus  injuriae, 
cum  fuerunt  oppressiones  violentce,  quihusresistinon  potest  &  dis- 
seisince  injustcc. 

So  as  hereby  it  also  appeareth,  that  time  of  peace  is  the  time 
of  law  and  right,  and  time  of  warre  is  the  time  of  violent  oppres- 
sion, which  cannot  be  resisted  by  the  equal  course  of  law.  And 
therefore  in  all  reall  actions,  the  expleas,  or  taking  of  the  profits, 
are  layed  tempore  jyacis,  for  if  they  were  taken  tempore  belli,  they 
are  not  accounted  of  in  law.  (1) 

"By 

(1)  If  tenant  by  elegit  is  interrupted  in  taking  the  profits  of  the  land,  by 
reason  of  war,  he  shall  not  hold  over,  but  it  shall  be  in  disadvantage  of  the 
tenant  by  elegit.  19  i7.  1.  Execution,  246.  4  Eep.  82.  b.  In  Lib.  Rubb. 
Scacc.  fol.  241.  tempus  guerrte  duravit  a  quarto  die  Apl.  48  H.  3.  usque  ad 
17  Sep.  an.  49,  apud  Winter  post  bellum  de  Evesham  pax  proclamata  fuit. 
Nota  H.  3.  19  die  Oct.  anno  ejusdem  16.  fuit  apud  Wall.  An.  40,  fuit  apud 
Oxon.  48.  apud  Dudl.  14  Maij.  an.  49.  fuit  apud  Evesham.  Et  tamen  sunt 
placita  de  Rich.  16  H.  3.  de  banco.  Tr.  16  H.  3.  Et  assisa  magna  40  H.  3. 
48  H.  3.  M.  40  H.  3.  P.  48  H.  3.  P.  49  H.  3.  Et  placita  coram  rege 
a  32  usque  40  H.  3.  Tr.  4  H.  3.  26  et  27  E.  1.  Ent.  R.  T.  Rot.  5.  Goods 
were  seized  for  debt  to  the  king:  the  sheriff  returned,  that  the  Scots  entered 
hostiliter,  by  reason  of  which  they  could  not  be  taken :  Rule  Fiat  inde  inquisitio, 

&  interim  pacem  habeatde  demanda.  A'by,  31S.  384. 3  Inst.  53.     See  the 

case  of  the  earl  of  Lancaster  put  at  large.  Kota,  that  in  14  E.  3.  F.  scire 
facias,  122.  there  is  no  intimation  at  all  of  the  matter  ;  but  on  the  record  of  this 
case,  as  it  is  to  be  seen  in  the  manvscrijJt  Rep.* of  Coke,  428,  the  case  icas  thus  ; 
Henry  Lancaster  granted  to  the  Abbot  of  Rumsey  and  his  s«ccesso?-s,  quod  si  ex 
tunc  aliquo  tempore  vel  aliqua  occasione  guerrge  in  regno  Anglise  feriam  suam 
amitterent,  ita  quod  nihil  inde  percipere  possunt,  quieti  essent  ejusdem  anno 
et  tempore  de  forma  sua.  prjedicta  50/.  And  upon  scire  facias /or  the  arrears  of 
that  rent,  lohich  teas  in  court  for  three  years,  viz.  11,  12,  and  13  E.  3.  the 
abbot  pleaded  these  charters,  and  said,  that  guerra  fuit  tam  super  mare  quam 
super  terram  inter  dominum  regem  et  illos  de  Francia,  ita  quod  mercatores  ad 
dictas  nundinas  nee  venerunt  ut  solebant,  nee  ipse  abbas,  aliquod  proficuum  de 
iisdem  nundinis  per  idem  tempus  percepit  nee  percipere  possit,  quod  paratus 
fuit  verificare  juxta  tenorem  chartai  prsedictae;  and  it  was  resolved,  quod  utrum 
terra  sit  guerrina,  &e.  prout  hie  notatur.  Then  it  follows  in  the  said  manuscript ; 
Nota,  quod  guerra  dicitur  in  hoc  regno  esse,  quando  exercitium  justitia)  in  curiis 
et  placeis  regis  impeditur.  And  Coke  adds  a  short  note  :  Ceo  tryall  de  guerre 
in  cest  realm ;  et  ex  hoc  semble  que  ne  fuit  guerre  inter  E.  4.  et  H.  6.  car 

exercitium 

*  The  Editor  has  not  been  able  to  discoTcr  what  the  manuscript  is  to  which  lord  Nottingham 
alludes  in  this  place. 


L.  3.  C.  6.  Sect.  412.    Of  Discents.  [249.  b. 

" By  occupation.^'    Occupation  is  a  word  of  art,  and  signifieth  Ingham,  cap.  de 
a  putting  out  of  a  man's  freehold  in  time  of  warre;  and  it  is  all  Novel  disseisin. 
one  with  a  disseisin  in  time  of  peace,  saving  that  it  is  not  so 
dangerous  as  it  appeareth  here  by  Littleton;  and  therefore  the 
law  gave  a  writ  in  that  case  of  occupavit,  so  called,  by  reason  of 
that  word  in  the  writ,  in  stead  of  disseisivit,  in  the  assise  of  novel 
disseisin,  if  the  disseisin   had  beene   done  in  time  of  peace;  Lib. 4. fol. 49, 50. 
whereby  it  appeareth,  how  aptly  both  iu  this,  and  in  all  other  Ognel's  case, 
places,  Littleton  thorow  his  whole  booke  speaketh.     But  albeit 
occupatio,  whereof  Littleton  here  speaketh,  is  used  only  in  the 
said  writ(2)  and  in  none  other,  (that  I  can  finde  or  remember) 
yet  hath  it  been  used  commonly  in  conveyances  and  leases,  to 
limit,  or  make  certaine  precedent  words  ad  tunc  in  tenurd  & 
occupatione.     But  occupatio  is  applyed  to  the  possession,  be  it 
lawful!  or  unlawful!;  it  hath  also  crept  into  some  acts  of  parlia- 
ment, as  4  II.  7.  cap.  19.  39  Eliz.  cap.  1.  and  others;  and  occu- 
pare  is  sometimes  taken  to  conquer. 

"And  of  this  a  man  may  see  in  a  plea  upon  a  writ  of  aiel,  7 
E.  2."  Hereby  it  appeares,  that  ancient  termes  or  yeares,  after 
the  example  of  Littleton,  are  to  bee  cited  and  vouched  for  con- 
firmation of  the  law,  albeit  they  were  never  printed;  and  that  of 
those  yeares,  those  especially  of  iJ.  1.  -ff.  3.  &c.  are  worthy  of 
tlie  reading  and  observation ;  a  great  number  of  which  I  have 
seene  and  observed,  which  in  mine  opinion  doe  give  a  great  light, 
not  onely  to  the  understanding  and  reason  of  the  common  law, 
(which  Fifzherhert  either  saw  not,  or  were  by  him  omitted)  but 
also  to  the  true  exposition  of  the  ancient  statutes  made  in  those 
times.  Yet  mine  advice  is,  that  they  be  read  in  their  time.  For 
after  our  student  is  enabled  and  armed  to  set  on  our  yeare  bookes, 
or  reports  of  the  law,  let  him  read  first  the  latter  reports,  for  two 
causes.  First,  for  that  for  the  most  part  the  latter  judgements 
and  resolutions  are  the  surest,  and  therefore  it  is  the  best  to 
season  him  with  them  in  the  beginning,  both  for  the  settling  of 
his  judgment,  and  for  the  retaining  of  them  in  memorie. 
Secondly,  for  that  the  latter  are  more  facile  and  easier  to  be 
understood  than  the  more  ancient:  but  after  the  reading  of  them, 
then  to  reade  these  others  before  mentioned,  and  all  the  ancient 
authors  that  have  written  of  our  law;  for  I  would  wish  our  stu- 
dent to  be  a  compleat  lawyer.  But  now  to  returne.  As  it  is  6  E.  3.  41. 
in  case  of  discent,  so  it  is  in  case  of  presentation,  for  no  usurpa-  7  E.  .3.  ^ 
tion  iu  time  of  warre  putteth  the  right  patron  out  of  possession,  jg"*^;  ^''^^"  "' 
albeit  the  incumbent  come  in  by  institution  and  induction  :  and  Quar.  imp.  175. 
time  of  warre  doth  not  onely  give  privilege  to  them  that  be  in  F.  N.  B.  31. 
warre,  but  to  all  others  within  the  kingdome ;  and  although  the 
admission  and  institution  be  in  time  of  peace,  yet  if  the  present- 
ment were  in  time  of  warre,  it  putteth  not  the  right  patron  out 
of  possession. 

Sect. 


exercitium  justitije  non  impcditum  fuit,  come  appiert  per  les  reports  de  10  E. 
3.  et  49  H.  6.  nee  temps  H.  3.  hie  supra,  ncc  temps  Car.  1.  Lord  Nott.  MS. 
—[Note  190]. 

(2)  This  perhaps  is  not  quite  accurate,  as  the  words  of  the  writ  of  mandamus 
are  these :  Quis  terras  et  tencmenta  (del  tenant  del  roy)  a  temjwre  mortis  ejus- 
dem  tenentis  occupavit  et  exitus  et  proficuas  inde  percepit.  F.  N.  B.  253.  B. 
Nov.  lib.  intrat.  fol.  402.  c.  and  yid.  Stat,  de  Bigamis,  cap.  4.— [Note  191.] 


250.  a.]  Of  Discents.      L.  3.  C.  6.  Sect.  413. 


fi^Sect.  413.  i^l^'] 

ALSO  that  no  dying  seised  [ivliere  the  tenements  come  to  another  hy 
succession)  shall  take  away  the  entrie  of  any  person,  Sj-c.  As  of 
"prelates,  abbots,  priors,  deanes,  or  of  the  parson  of  a  church,  or  of  other 
bodies  politike  (Item,  *  que  nul  morant  seisie  (ou  les  tenements  viendront 
a  un  auter  per  succession)  f  tollera  I'entre  a'ascun  person,  &c.  %  Come 
de  prelates,  abbots,  priors,  deans,  ou  parson  d'esglise,  ||  ou  d'auters 
corps  politicke),  ^c.  albeit  there  were  xx.  dyings  seised,  and  xx.  succes- 
sors, this  shall  not  put  any  man  from  his  entrie  §. 
More  shall  be  said  of  discents  in  the  next  T[  chapter. 

Vid.  Sect.  1.        "  T>Y  succession."     This  in  the  coininon  law  is  applied  only  to 
bodies  politike,  or  corporate,  which  have  succession  per- 
petuall,  and  not  to  naturall  men :  as  to  a  bishop  and  his  succes- 
sors, or   to  an  abbot,  deane,  archdeacon,  prebend,  parson,  &c. 
and  their  successors,  and  not  to  I.  S.  or  any  other  naturall  body 
7  E.  3.  25.  a.       and  his  successors,  but  to  him  and  his  heires.     And  the  succes- 
6  E.  3. 13.  &  31.  sor  of  any  of  these  is  in  the  post,  and  the  heire  of  the  naturall 
man  is  in  the^er;  and  succedere  is  derived  of  sub  and  cedere. 

'^  Bodies  politike,  &c."     This  is  a  body  to  take  in  succession, 
framed  (as  to  that  capacity)  by  policie,  and  thereupon  it  is  called 
here  by  Littleton  a  body  politike;  and  it  is  also  called  a  corpora- 
tion, or  a  body  incorporate,  because  the  persons  are  made  into  a 
body,  and  are  of  capacity  to  take  and  grant,  &c.    And  this  body 
politike,  or  incorporate,  may  commence,  and  be  established  three 
manner  of  ways,  viz.  by  prescription,  by  letters  patents,  or  b}' 
act  of  parliament.     Every  body  politike,  or  corporate,  is  either 
ecclesiasticall  or  lay:   ecclesiastical,  either  regular,  as  abbots, 
priors,  &c.,  or  secular,  as  bishops,  deanes,  archdeacons,  parsons, 
vicars,  &c. ;   lay,  as  maior  and  communaltie,  baylifes  and  bur- 
gesses, &c.     Also  every   body   politike,  or  corporate,  is  either 
Lib. 3.  fo.  73.        elective,  presentative,  collative,  or  donative.     And  againe  it  is 
in  the  case  of  the  either  sole,  or  aggregate  of  many;  as  you  mayreade  in  the  Third 
terT/Norwich'    ^^^^  of  my  Commentaries.     And   this   body  politike,  or  cor- 
(1  Sid.  162.)        porate,  aggregate  of  many,  is  by  the  civilians  called  collegium 
(11  Rep.  77.  a.)    or  universitas. 

Chap. 

*  que  not  in  L.  and  M.  or  Roh.  §  &c.  addded  in  L.  and  M.  and  Rob. 

"f"  ne  added  in  L.  and  M.  and  Roh.         ^  next    chapter  —  chapter   of   Con- 
i  Come — quor.  L.and  M.  and  Roh.     tinv.aU  C'laime,  L.  and  M.  and  Roh. 
II  ou  d'auters  corps  politicke,  not  in 
L.  and  M.  or  Roh. 


L.  3.  C.  7.  Sect.  414.  Of  Continiiall  Claime.  [250.  a.  250.  b. 
Chap.  7.        Continiiall  Claime.  (1)  Sect.  414. 

rjONTINUAL  claim  is  ivliere  a  man  hath  right  and  title  to  enter 
into  any  lands  or  tenements  tvhereof  another  is  seised  in  fee  (con- 
tinual claime  est  f  la  lou  home  ad  droit  et  title  d'entrer  en  ascuns  ter- 
res  ou  tenements  dont  **  auter  est  seisie  en  fee),  or  in  fee  tail,  if  hee 
ivhich  hath  title  to  enter  makes  continiiall  claime  to  the  lands  or  tene- 
ments before  the  dying  seised  of  him  ivhich  holdeth  the  tenements,  then 
albeit  that  such  tenant  dieth  thereof  seised,  and  the  lands  or  teneme^its 
descend  to  his  heire,  yet  may  he  who  hath  made  such  continual  claime^ 
or  his  heire,  enter  into  the  lands  or  tenements  so  descended,  by  reason 
of  the  continuall  claime  made,  notwithstanding  the  discent.  As  in 
case  that  a  man  bee  disseised,  and  the  diseeisee  makes  continuall  claime 
to  the  tenements  in  the  life  of  the  disseisor,  although  that  the  disseisor 
dieth  seised  in  fee,  and  the  land  descend  to  his  heire,  yet  may  the  dis- 
seissee  enter  upon  the  possession  of  the  heire,  notivithstanding  the  dis- 
cent §. 

HERE  our  Author  first  describeth  what  a  continuall  claime  is.  Mirror,  cap.  i. 

It  is  called  continuum  clameum,  because  at  the  common  law  ?  ^^  *  ?  !?• 

it  must  have  beene  made  within  every  yeare  and  day,  as  Littleton  fo' Yss^-ise. 

here  teacheth.     And  yet  if  hee  that  right  hath,  maketh  claime,  Britton,  107.  b. 

and  the  ter-tenant  dieth  within  the  yeare  and  the  day,  126.  4. 

r350."|  this  claime  though  it  bee  but  J5@^  once  [*]  made  (as  ^ap!''52.'^53.^" 


■] 


L     b.     J   hath  beene  said)  shall  preserve  the  entry  of  him  that  vid.  Sect.  424. 
maketh  the  claime  (1)  11.  Vid.  Sect.  385. 

^    '  "  32  H.  8.  c.  33. 

[*]  Vid.  Sect.  424. 

"  Hath 
f  per  added  in  L.  and  M.  §  &c.  added  in  L.  and  M.  and 

**  un  added  in  L.  and  M.  Roh. 

(1 )  By  the  statute  of  limitations,  21  Jac.  1.  c.  16,  it  is  enacted,  that  no  entry 
shall  be  made  by  any  man  upon  lands,  unless  within  twenty  years  after  his 

right  shall  accrue. By  the  4th  and  5th  (A)  Ann.  c.  16,  it  is  enacted,  that 

no  entry  shall  be  of  force  to  satisfy  the  statute  of  limitations,  or  to  avoid  a  fine 
levied  of  lands,  unless  an  action  be  thereupon  commenced  within  one  year 
after,  and  prosecuted  with  effect. — [Note  192.] 

(1)  II  It  has  been  observed  in  the  notes  to  the  chapter  of  Discents,  that  the 
reasons  for  which  the  law  protected  the  possession  of  the  heir  of  the  disseisor 
from  the  entry  of  the  disseisee,  were,  the  notoriety  and  presumptive  right  of 
possession  which  the  disseisor  acquired  by  his  being  permitted  to  hold  during 
his  life  the  peaceable  possession  of  the  lands ;  the  necessity  that  there  should 
be  a  tenant  to  do  the  feudal  duties ;  and  by  way  of  a  punishment  on  the  tenant 
for  his  neglect  in  not  asserting  his  right.  But  none  of  these  reasons  could 
exist,  where  the  tenant  entered  upon  the  lands,  and  made  his  claim  for  them ; 
as,  by  doing  it,  he  prevented  the  presumption  in  favour  of  the  title  of  the 
disseisor ;  made  a  tender  to  the  lord  of  his  feudal  services ;  and  did  all  that 
was  in  his  power  to  restore  his  possession.  But,  to  entitle  the  disseisee  to  enter 
on  the  heir  of  the  disseisor,  notwithstanding  the  descent  upon  him,  this  claim 
must  have  been  made  within  a  year  and  a  day  next  preceding  the  descent. 
Lord  Chief  Baron  Gilbert,  in  his  commentary  upon  this  chapter,  observes,  that 

the 

(A)   The  act  is  styled  ith  Attn.  c.  16,  in  Ruffhcad's  edition  of  the  Statv,tei  at  large. 


250,  b.  I      Of  ContinuaU  Claime.     L.  3.  C.  7.  Sect.  414. 

^' Hath  right  and  title  to  enter T  And  yet  in  some  cases  a 
continuall  claime  may  be  made  by  him  that  hath  right,  and  can- 
not enter. 

If  tenant  for  yeares,  tenant  by  statute  staple,  merchant,  or 
elegit,  be  ousted,  and  he  in  the  reversion  disseised,  the  lessor,  or 
he  in  reversion,  may  enter  to  the  intent  to  make  his  claime,  and 
yet  his  entry  as  to  take  any  profits,  is  not  lawfull  during  the 
terme.  And  in  the  same  manner,  the  lessor  or  he  in  the  rever- 
sion in  that  case  may  enter  to  avoid  a  collateral  warranty,  or  the 
lessor  in  that  case  may  recover  in  any  assise.  And  so  (as  some 
have  holden)  may  the  lessor  enter  in  case  of  a  lease  for  life,  to 
this  intent,  to  avoid  a  discent,  or  a  warranty. 

If  the  disseisee  make  continuall  claime,  and  the  disseisor  die 
seised  within  the  yeare,  his  heire  within  age,  and  by  ofl&ce  the 
king  is  intitled  to  the  wardship,  albeit  the  entry  of  the  disseisee 
bee  not  lawfull,  yet  may  he  make  continuall  claime  to  avoid  a 
discent,  and  so  in  the  like. 


Dyer,  19  El. 
PL  Com.  374. 
15  H.  7.3.4. 
Jaoobin's  case. 
28  H.  6.  28. 
Vid.  Sect.  422. 
45  E.3.  21. 

7  H.  6.  40. 
Contin.  Claime, 
1  Downcler's 
case.     5  E.4.  4. 
(Plo.  191.  a.) 
(9  Rep.  106.) 
{1  Rep.  67.  a.) 
(1  Roll.  Abr. 
(630.) 


■^Bracton,  lib.  5. 
fo.  436. 
Fleta.  lib.  5. 
cap.  52,  53. 
22  H.  6.  37. 
9  H.  4.  5.  a. 
15  E.  4.  22.  a. 


23  H.  6.  37. 


"  Yet  may  he  loho  hath  made  such  continuall  claime,  or  his  heire, 
enter."  This  is  to  be  understood  in  this  manner :  that  if  the 
father  make  claime,  and  the  disseisor  dieth,  and  then  the  father 
dieth,  that  his  heire  may  enter,  because  the  discent  was  cast  in 
the  father's  time,  and  the  right  of  entry  which  the  father  gained 
by  his  claime  shall  descend  to  his  heire.  But  if  the  father  make 
continuall  claime,  and  dieth,  and  the  sonne  make  no  continuall 
claime,  and  within  the  yeare  and  day  after  the  claime  made  by 
the  father,  the  disseisor  dieth,  this  shall  take  away  the  entrie  of 
the  sone,  for  that  the  discent  was  cast  in  his  time,  and  the 
claime  made  by  the  father  shall  not  availe  him  that  might  have 
claimed  himselfe.  And  of  this  opinion  was  Littleton  himselfe 
in  our  bookes,  where  he  holdeth  that  no  continuall  claime  can 
avoid  a  discent,  unlesse  it  be  made  by  him  that  hath  title  to 
enter,  and  in  whose  life  the  dying  seised  was.  See  more  of  this 
matter  hereafter,  in  this  chapter.  Sect.  416. 

And  as  here  Littleton  putteth  his  case  of  the  ancestor  and 
heire,  so  it  holdeth  in  all  respects  of  the  predecessor  and  suc- 
cessor. 

Sect. 

the  notion  of  laches,  in  not  claiming  for  a  year  and  a  day,  is  taken  from  the 
feudal  law ;  this  being  the  period  of  time  within  which  the  feudal  services 
must  be  required.  It  is  a  space  of  time  which  is  prescribed  for  the  performance 
of  different  acts  in  our  law,  and  in  all  laws  derived  from  the  feudal  institutions. 
It  seems  only  to  import  the  sp-.'ce  of  a  complete  year.  Thus  in  the  fourth 
law  of  Charlemagne  it  is  said,  Cvjuscunque  hominis  jjrojjrietas  oh  crimen  quod 
idem  habet  commissum  in  honmim  fuerit  misca,  &  ille  re  cognitd  ne  jnstitiam 
faciat  venire  distulerit,  annumque  et  diem  in  eo  hanno  esse  jjo-miseret,  nlterius 
eam  non  acquirat,  sed  ipsajisco  nostra  societur. — In  the  laws  of  King  Pepin  it  is 
said,  De  rehits  forfactis,  quae  per  diversos  comitatos  snnt,  volumus  tit  adpala- 
tium pertincant,  transacto  anno  et  die.  In  the  Vieux  Coutoumier  de  Nbrmandie 
it  frequently  occurs.  Something  similar  is  to  be  found  in  the  Koman  law,  in 
which  a  person  who  was  bound  to  pay  a  sum  of  money  in  two  months,  was 
considered  to  acquit  himself  from  the  obligation,  if  he  paid  the  money  on  the 
61st  day.  See  Pasquier,  les  Recherches  de  la  France,  lib.  4.  cap.  32.  L)e  Van 
etjour  qiLC  Von  desira  es  matieres  de  retraicts  lignagers  et  de  la  complainte. — In 
Plo.  Com.  359.  a  lord  chief  justice  Dyer  is  said  to  have  defined  claim  to  be  a 
challenge  of  the  ownership,  or  propriety,  that  he  hath  not  in  possession,  but  is 
detained  from  him  by  wrong. — [Note  193.] 


L.  3.  C.  7.  Sect.  415,  416.  Of  Continuall  Claime.  [251.  a. 


r251.J  jg^  gg^^^   ^l^  (1  Rep.  14.  a.) 

TN  the  same  manner  it  is,  if  tenant  for  life  alien  in  fee,  he  in  the  re- 
version or  he  in  the  remainder  may  enter  upon  the  alienee.  And  if 
such  alienee  dieth  seised  of  such  estate  without  continuall  claime  made 
to  the  tenements,  before  the  dying  seised  of  the  alienee,  and  the  lands  by 
reason  of  the  dying  seised  of  the  alienee  descend  *  to  his  heir,  then  can- 
not he  in  the  reversion  nor  hee  in  the  remainder  enter.  But  f  if  hee  in 
the  reversion  or  in  the  remainder,  who  hath  cause  to  enter  wpon  the 
alienee,  make  continuall  claime  to  the  land  before  the  dying  seised  of  the 
alienee,  then  such  a  man  may  enter  after  the  death  of  the  alienee,  as 
well  as  he  might  in  his  life-time  (donques  tiel  home  poit  enter  apres  la 
morte  I'alienee,  auxy  bien  come  il  J  puissoit  en  sa  vie)  §. 

BY  this  it  appeareth,  that  a  continuall  claime  may  be  made  as 
well  where  the  lands  are  in  the  hands  of  a  feoffee,  &c.  by 
title,  as  in  the  hands  of  a  disseisor,  abator,  or  intrudor,  by 
wrong,  as  before  hath  beene  noted  (1). 


Sect.  416. 

ALSO,  if  land  be  let  to  a  man  for  terme  of  his  life,  the  remainder  to 
another  for  terme  of  life,  the  remainder  to  the  third  in  fee,  if  tenant 
for  life  alien  to  another  in  fee,  and  he  in  the  remainder  for  life  maketh 
continuall  claime  to  the  land  before  the  dying  seised  of  the  alienee,  and 
after  the  alienee  dieth  seised,  \\  and  after  he  in  the  remainder  for  life  die 
before  any  entrie  made  by  him,  in  this  case  he  in  the  remainder  in  fee  may 

enter 

*  to  Ms   heir — to  the  heir   of  the         J  puissoit  en — poet  a,    L.  and  M. 
alienee,  L.  and  M.  and  Roh.  and  Roh. 

I  if  not  in  L.  and  M.  or  Roh.  §  &c.  in  L.  and  M. 

I    &c.  added  in  L.  and  M.  and  Roh. 


(1)  Except  for  the  special  purposes  mentioned  by  Littleton  and  sir  Edward 
Coke,  and  in  a  few  other  instances,  the  lessor,  if  the  lessee  for  life  were  dis- 
seised, could  not  enter.  But  he  might  maintain  an  assise.  In  that  case  how- 
ever, though  he  recovered  the  freehold,  which  was  devested  out  of  him,  he 
recovered  no  damages,  because  those  were  supposed  to  be  a  compensation  for 
the  loss  of  possession,  which  loss  was  sustained  not  by  him,  but  by  the  tenant 
for  life.  15  H.  7.  4. — The  lessor  might  enter  upon  the  lessee  to  examine 
whether  he  had  committed  waste,  or  to  view  repairs.  13ro.  Trespass.  16.  97. 
208.  And  if  the  lessee  impeded  his  entry,  the  lessor  might  bring  an  action  on 
the  case.  Cro.  Jac.  478. — Express  covenants,  that  it  shall  be  lawful  for  the 
lessor  to  enter  and  view  the  lands  demised,  are  now  usually  inserted  in  leases. 
— For  the  entry  of  reversioners,  or  remainder-men  to  avoid  a  fine,  see  Margaret 
Podger's  case,  9  Rep.  106.— [Note  194.] 


251.  a. 251.  b.]  Of  Continuall  Claime.  L.  3.  C.  7.  Sect,  416. 

enter  f  upon  the  heire  of  the  alienee,  hy  reason  of  the  continuall  claime 
made  by  him  which  had  the  remainder  for  life,  because  that  such  right 
as  hee  had  of  entrie,  shall  goe  and  remaine  to  him  in  the  remainder  after 
him,  insomuch  as  hee  in  the  remainder  in  fee  could  not  enter  upon  the 
alienee  in  fee  during  the  life  of  him  in  the  remainder  for  life,  and  for 
that  he  could  not  then  make  continuall  claim  (pur  ceo  que  tiel  droit  que 
il  averoit  d'entre,  X  alera  et  remaindra  a  celuy  en  le  remainder  apres 
luy,  entant  que  celuy  en  le  remainder  en  fee  §  ne  puissoit  pas  enter  sur 
I'alienee  en  fee  durant  la  vie  celuy  en  le  remainder  pur  terme  de  ||  sa 
vie,  et  pur  ceo  *  que  il  ne  puissoit  adonques  faire  continuall  claim). 
'\''\{For  none  can  make  continuall  claime  but  whert  he  hath  title  to 
enter,  ^c.) 

^^  A  LIEN  to  another  in  fee."     It  is  to  be  observed,  tbat  a 
forfeiture  may  be  made  by  the  alienation  of  a  particular 
tenant,  two  manner  of  wayes ;  either  in  pais,  or  by  matter  of 
record. 

In  pais,  of  lands  and  tenements  which  lie  in  livery  (whereof 
Littleton  intendeth  his  case)  where  a  greater  estate  passeth  by 
livery  than  the  particular  tenant  may  lawfully  make,  whereby 
the  reversion  or  remainder  is  devested,  as  here  in  the  example 
that  Littleton  putteth  when  tenant  for  life  alieneth 
J8@°  in  fee,  which  must  bee  understood  of  a  feoflf-  rQ51.  ~\ 
ment,  fine,  or  recoverie  by  consent,  L     ll^-     J 

If  tenant  for  life,  and  hee  in  the  remainder  for  life, 
in  Littleton's  case,  hath  joyned  in  a  feoffment  in  fee,  this  had 
beene  a  forfeiture  of  both  their  estates,  because  hee  in  the  re- 
mainder is  particej)s  injunce.  And  so  it  is  if  hee  in  the  remain- 
der for  life  had  entred,  and  disseised  tenant  for  life,  and  made  a 
feoffment  in  fee,  this  had  beene  a  forfeiture  of  the  right  of  his 
remainder  (1). 

A  particular  estate  of  any  thing  that  lies  in  grant  cannot  be 
forfeited  by  any  grant  in  fee  by  deed.  As  if  tenant  for  life  or 
yeares  of  an  advowson,  rent,  common,  or  of  a  reversion  or  remain- 
der of  land,  by  deed  grant  the  same  in  fee,  this  is  no  forfeiture 
of  their  estates,  for  that  nothing  passes  thereby,  but  that  which 
lawfully  may  passe ;  and  of  that  opinion  is  Littleton  in  our  bookes. 

But  if  tenant  for  life  or  yeares  of  land,  the  reversion  or  re- 
mainder being  in  the  king,  make  a  feoffment  in  fee,  this  is  a 
forfeiture,  and  yet  no  reversion  or  remainder  is  divested  out  of 
the  king ;  and  the  reason  is,  in  respect  of  the  solemnitie  of  the 


(1  Roll.  Abr. 
d30.) 


Vide  Sect.  581. 
609,  610,  611. 


(1  Rep.  14.) 
17  El.  Dy.339. 
16  El.  Dy.  324. 


33  E.  3. 
Devise,  21, 
15  E.  4.  9. 

Vide  Sect.  608, 
609,  610. 
(1  Roll.  Abr. 
854.) 

(1  Rep.  76.  b.) 

35  H.  6.  62. 
Tr.  32  El.  in 
Informat.  de  in- 
trusion vers 


Robinson  pur  le  feoffment  by  liverie,  tending  to  the  king's  disherison  (2). 


Manor  de  Dray 
ton  Basset,  so 
resolved  by  the 
court  of  ex- 
chequer. 


f  &c.  added  in  L.  and  M.  and  Koh. 
t  ne  in  L.  and  M.  and  Roh. 
§  que  added  in  L.  and   M.    and 
Roh. 


By  matter  of  record,  and  that  by  three  manner  of  wayes. 
First,  by  alienation.  Secondly,  by  claiming  a  greater  estate 
than  he  ought.  Thirdly,  by  affirming  the  reversion  or  remain- 
der to  be  in  a  stranger. 

First, 
II  sa  not  in  L.  and  M.  or  Roh. 
*  que  not  in  L.  and  M.  or  Roh. 
■}"}•  (^For  none  can  make  continuall 
claime)  not  in  L.  and  M.  or  lloh. 


(1)  See  the  observations  on  feoffments  introduced  in  the  notes  to  the  next 
chapter. 

(2)  See  ant.  233.  b.  note. 


L.  3.  C.  7.  Sect.  416.  Of  Continuall  Claime.  [251.  b.  252.a. 

First,  by  alienation ;  and  that  of  two  sorts,  viz.  by  alienation  (Post.  332.  b. 
divesting,  or  not  divesting,  the  reversion  or  remainder.     Divest-  ^ijj^°855  )     °  * 
ing,  as  by  levying  of  a  fine,  or  suffering  a  common  recoverie  of 
lands,  whereby  the  reversion  or  remainder  is  divested :  not  divest- 
ing, as  by  levying  of  a  fine  in  fee,  of  an  advowson,  rent,  common, 
or  any  other  thing  that  lieth  in  grant ;  and  of  this  opinion  is 
Littleton  in  our  hookes  [*].     And  so  note  two  diversities  :  first,  [*]15E.  4, 9. 
between  a  grant  by  fine  (which  is  of  record)  and  a  grant  by  31  E.  3.  Gr.  62. 
deed  in  pais;  and  yet  in  this  they  both  agree  that  the  reversion  l  .  '  "•  ,,- 
or  remainder  in  neither  case  is  divested  :  secondly,  betweene  a 
matter  of  record,  as  a  fine,  &c.  and  a  deed  recorded,  as  a  deed 
inrolled,  for  that  worketh  no  forfeiture,  because  the  deed  is  the 
originall. 

Secondly,  by  claime ;    and  that  may  be  in  two  sorts,  either  15  E.  2. 
exprosse   or  implyed.     Expresse,  as  if  tenant  for  life  will  in  g^^^A  ^fl" 
court  of  record  claime  fee,  or  if  lessee  for  yeares  be  ousted,  and  g  e!  3.  4.' 
he  will  bring  an  assise  ut  de  lihero  tenemento.     Implyed,  as  if  18  E.  2. 
in  a  writ  of  right  brought  against  him  he  will  take  upon  him  to  fc^^^'/^o^q 
joyne  the  mise  upon  the  meere  right,  which  none  but  tenant  in  35  jj'_  6*29'. 
fee  simple  ought  to  doe.     So  if  lessee  for  yeares  doe   lose  in  a  2  H.  6.  9. 
praecipe,  and  will  bring  a  writ  of  error,  for  error  in  processe,  this  ^  ^-  ^^• 
is  a  forfeiture  (3).  22  Ass.  3i'. 

18  E.  3.  28.    16  Ass.  16.     (Mo.  77.  2l2.     1  Rep.  16.) 

[Q53.1     J^^  Thirdly,  by  affirming  the  reversion  or  remainder  21  e  3  14  a. 
a.     J   to  be  in  a  staanger,  and  that  either  actively  or  passively.  5  e.  4.  2. 

Actively,  by  five  manner  of  wayes.  As  first,  if  tenant  24  H.  8.  Forf. 
for  life  pray  in  aid  of  a  stranger,  whereby  he  affirmes  the  rever-  ^j'  ^^-  g- ^• 
sion  to   be  in  him.     Secondly,  if  he  atturne  to  the  grant  of  a  Buckler's  case, 
stranger ;  and  there  note  also  a  diversitie  betweene  an  atturne-  27  E.  3.  77. 
ment  of  record  to  a  stranger,  and  an  atturnement  in  pais,  for  an  ^^  ^-  ^-  ^-  *• 
atturnement  in  pais  worketh  no  forfeiture.  Thirdly,  if  a  stranger  29  e'.  '3'.  24! 
bring  a  writ  of  entrie  in  causa provisa,  and  suppose  the  reversion  5  Ass.  5. 
to  be  in  him,  if  the  the  tenant  for  life  confesse  the  action,  this  is  ^  ^'^^'.^  ^°*^" 
a  forfeiture.     Fourthly,  if  tenant  for  life  plead  covinously  to  the  ^4  g!  3.  * 
disherison  of  him  in  the  reversion,  this  is  a  forfeiture.    Fifthly,  Receit.135. 
if  a  stranger  bring  an  action  of  waste  against  lessee  for  life,  and  3- E.  32. 
he  plead  nul  wast  fait,  this  is  a  forfeiture;  or  the  like.  j  H.  7. 

(1  Roll.  Abr.  852.     3  Rep.  4.  b.     1  Loo.  264.     9  Rop.  106.) 

Passively,  as  if  tenant  for  life  accept  a  fine  of  a  stranger,  sur  3  Mar.  Dy.  148. 
conusans  de  droit  come  ceo,  &c.  for  hereby  he  affirmes  of  record 
the  reversion  to  be  in  a  stranger  (1). 

Littletonhere  speaketh  of  the  forfeiture  of  an  estate  ;  and  here  Lib.  2.  fol.  55. 
it  is  to  be  knowen,  that  the  right  of  a  particular  estate  may  be  Buckler's  case, 
forfeited  also,  and  that  he  that  hath  but  a  right  of  a  remainder  or 

reversion 

(3)  So  in  the  case  of  a  lease  for  life,  the  tenant  may  plead  it  in  bar;  but 
in  the  case  of  a  lease  for  years,  or  an  estate  of  tenant  by  statute  or  elegit,  the 
defendant  shall  not  plead  in  bar,  as  to  say,  assisa  non,  &c.  but  justify  by  force 
of  the  lease :  and  conclude,  issint  sans  tort ;  and  if  the  tenant  of  the  freehold 
be  not  named,  he  shall  plead,  nid  tenant  de  franctenement  nosmi  en  le  href: 
and  in  the  case  of  a  feoffment  with  a  warranty,  he  must  rely  on  a  warranty. 
See  ant.  228.  b.  229.  a.— [Note  195.] 

(1)  But,  though  this  acceptance  amounts  to  a  forfeiture,  it  does  not  devest 
the  estate  of  him  in  remainder  or  reversion.  9  Rep.  fol.  106.  b  — [Note  196.] 

Vol.  II.— 20 


252.  a.]     Of  Continuall  Claime.     L.  3.  C.  7.  Sect.  416. 

reversion  shall  take  benefit  of  the  forfeiture.  As  if  the  tenant  for 

life  be  disseised,  and  hee  levie  a  fine  to  the  disseisor,  he  in  the 

reversion  or  remainder  shall  presently  enter  upon  the  disseisor 

for  the  forfeiture.     And  so  it  is  if  the  lessee  after  the  disseisin 

had  levied  a  fine  to  a  stranger,  though  to  some  respects  partes 

finis  nihil  hahuerunt,  yet  it  is  a  forfeiture  of  his  right. 

13  E.  4.  4.  Littleton  here  speaketh  of  an  alienation  in  fee  absolutely,  but 

so  it  is  if  the  lessee  for  life  make  a  lease  for  any  other  man's  life, 

or  a  gift  in  taile.     If  A.  be  tenant  for  life,  and  make  a  lease  to 

B.  for  his  life,  and  B.  dieth,  and  the  lessee  re-entreth,  yet  the 

forfeiture  remaineth. 

(Ant.  202.  b.)  ^^  tenant  for  life  make  a  lease  for  life,  or  a  gift  in  taile,  or  a 

39  Ass.  15.  feofi'ment  in  fee,  upon  condition,  and  entreth  for  the  condition 

43  E.  3.  broken,  yet  the  forfeiture  remaineth.     Littleton  speaketh  of  an 

2  H  5*^°^      '      estate  for  life  :  so  it  is  of  tenant  in  taile  apres  possibilitie,  tenant 

39  E.  3. 16.         by  the  courtesie,  tenant  in  dower,  or  of  him  that  hath  an  estate 

45  E.  3.  25.         to  him  and  his  heires,  during  the  life  of  /.  *S^.  &c.  and  so  of  tenant 

42°a )  '  *'         ^'^^  yeares,  tenant  by  statute  merchant,  statute  staple,  or  elegit. 

Littleton  saith,  that  where  the  alienation  in  fee  is  made  to 

another,  which  must  be  intended  a  stranger,  for  if  it  be  made  to 

him  in  reversion  or  remainder,  it  amounts  to  a  surrender  of  his 

estate,  as  at  large  hath  beene  spoken  in  the  chapter  of  tenant 

for  life. 

By  Littleton  it  appeareth,  that  tenant  for  life  in  remainder  may 
enter  for  the  forfeiture  of  the  first  tenant  for  life,  and  that  if  the 
tenant  for  life  in  remainder  make  continuall  claime,  and  the 
alienee  die  seised,  then  may  he  in  the  remainder  for  life  enter ; 
and  if  he  die  before  he  do  enter,  then  he  in  the  remainder  in  fee 
shall  enter,  because  he  in  the  remainder  in  fee  could  not  make 
any  claime  (2) ;  and  therefore  the  right  of  en  trie,  which  tenant 
for  life  in  remainder  gained  by  his  entrie  (3),  shall  goe  to  him  in 
(1  Roll.  Abr.  the  remainder  in  fee,  in  respect  of  the  privitie  of  estate  :  and  so  it 
''  is  of  him  in  the  reversion  in  fee  in  like  case,  for  he  is  also  privie 

in  estate.  « 

If  two  joyntenants  be  disseised,  and  the  one  of  them  make 
continuall  claime,  and  dieth,  the  survivor  shall  take  benefit  of 
his  continuall  claime  in  respect  of  the  privitie  of  their  estate. 

But  if  tenant  for  life  make  a  continuall  claime,  this  shall  not 
give  any  benefit  to  him  in  the  remainder,  unlesse  the  disseisor 
died  in  the  life  of  tenant  for  life,  for  the  cause  abovesaid,  Sec- 
^t'one  414. 

If  tenant  in  taile,  the  remainder  in  fee  with  garrantie,  have 
judgement  to  recover  in  value,  and  dieth  before  execution  with- 
out issue,  he  in  the  remainder  shall  sue  execution,  for  he  hath 
right  thereunto,  and  is  privie  in  estate. 

In  the  same  manner,  if  a  seigniore  be  granted  by  fine  to  one 
for  life,  the  remainder  in  fee,  the  grantee  for  life  dieth,  be  in  the 
remainder  shall  have  a  per  quae  servitia,  for  he  hath  right  to  the 
remainder,  and  is  privie  in  estate.  Here  also  it  appeareth,  that 
none  can  make  continuall  claime,  but  he  that  hath  right  to  enter. 

Sect. 


(2)  i.  e.  during  the  life  of  him  in  the  remainder  for  life. 

(3)  The  word  entry  appears  to  be  printed  in  this  case  by  mistake,  instead  of 
the  word  claim,  which  the  context  seems  to  require. 


L.  3.  C.  7.  S.  41 7.    Of  Continuall  Claime.    [252.  a.  252.  b. 


Sect.  417. 

^  UT  it  is  to  he  scene  of  thee  {my  son)  liow  and  in  what  manner  such 
continuall  claime  shall  he  made;  and  to  learn e  this  wel,  three  things 
are  to  he  understood.  The  first  thing  is,  if  a  man  hath  cause  to  enter 
into  any  lands  or  tenements  in  divers  totv?ies  in  one  same  countie,  if  he 
enter  into  one  parcell  of  the  lands  or  tenements  which  are  in  one  towne, 
in  the  name  of  all  the  lands  or  tenements  into  the  which  he  hath  right  to 
enter  within  all  the  townes  of  the  same  countie  ;*  hy  such  entrie  he  shall 
have  as  good  a  possession  and  seisin  of  all  the  lands  and  tenements 
whereof  he  hath  title  of  entrie  (de  f  touts  terres  ou  tenements  dont  il 
ad  title  d'entrie),  as  if  he  had  entered  |  in  deed  into  every  parcell:  and 
this  seemeth  great  reason. 

"  TF  a  man  hath  cause  to  enter  into  any  lands  or  tenements,  &c"  (Pio.  355.  b. 

It  is  not  sufficient  to  tell  one  generally  what  he  should  doe,  359.  a. 
but  to  direct  him  how,  and  in  what  manner  he  shall  doe  it,  as  3  ]L°^*"  qP; 
Littleton  doth  in  this  place.     And  here,  the  generall  (Postses.  b.) 

[252."j  rules  of  our  author  are  to  bee  B^*-  understood,  that  the 
-b.     J  entrie  of  a  man,  to  recontinue  his  inheritance  or  free-  This  hath  beeno 
hold,  must  ensue  his  action  for  recoverie  of  the  same,  adjudged,  Mich. 
As  if  three  men  disseise  me  severally  of  three  severall  acres  of  ^  ^  ^^  ^^\^- 
land,  being  all  in  one  countie,  and  I  enter  in  one  acre,  in  the  theVatl^of  ° 
name  of  all  the  three  acres,  this  is  good  for  no  more  but  for  that  Arundell's  case, 
acre  which  I  entered  into,  because  each  disseisor  is  a  severall 
tenant  of  the  freehold,  and  as  I  must  have  severall   actions 
against  them  for  the  recoverie  of  the  land,  so  mine  entrie  must 
be  severall. 

And  so  it  is  if  one  man  disseise  mee  of  three  acres  of  ground, 
and  letteth  the  same  severally  to  three  persons  for  their  lives,  &c. 
there  the  entrie  upon  one  lessee,  in  the  name  of  the  whole,  is  (4  Leo.  8.) 
good  for  no  more  than  that  acre  that  he  hath  in  his  possession,  (l  Leo.  36.) 
But  if  the  disseisor  had  letten  severally  the  said  three  acres  to  \}  ^°^^-  -^^'■• 
three  persons  for  yeares,  there  the  entrie  upon  one  of  the  lessees,  q  Leo.  51.) 
in  the  name  of  all  the  three  acres,  shall  recontinue  and  revest 
all  the  three  acres  in  the  disseisee,  for  that  the  disseisee  might 
have  had  one  assise  against  the  disseisor,  because  he  remained 
tenant  of  the  freehold  for  all  the  three  acres,  and  therefore  one 
entrie  shall  serve  for  the  whole. 

If  one  disseise  me  of  one  acre  at  one  time,  and  after  disseise  7  Ass.  18. 
me  of  another  acre  in  the  same  countie  at  another  time,  in  this  ^^  E.  4. 10. 
case  mine  entrie  into  one  of  them  in  the  name  of  both  is  good :  32  ^g/"  j^j 
for  that  one  assise  might  be  brought  against  him  for  both  dis- 
seisins. 

But  if  I  infeoffe  one  of  one  acre  of  ground  upon  condition,  11  H.  7.  25. 
and  at  another  time  I  infeoffe  the  same  man  of  another  acre  in  ^^tf- 
the  same  countie  upon  condition  also,  and  both  the  conditions        '  " 
are  broken,  an  entrie  into  one  acre  in  the  name  of  both  is  not 
sufficient,  for  that  I  have  no  right  to  the  land,  nor  action  to 
recover  the  same,  but  a  bare  title,  and  thei*eforc  severall  entries 

must 

*  and  added  in  L.  and  M.  and  Roh.         |  in  deed,  not  in  L.  and  M.  or 
f  touts — tiels,  L.  and  M.  and  Roh.       Roh, 


252. b.  253.  a. J     Of  Continuall  Claime.    L.  3.  C.  7.  S.  418. 

must  be  made  into  the  same,  in  respect  of  the  severall  conditions. 
But  an  entrie  in  one  part  of  the  land,  in  the  name  of  all  the 
land  subject  to  one  condition,  is  good,  although  the  parcels  be 
severall,  and  in  severall  townes.  And  so  note  a  diversitie  be- 
tweene  sev  /all  rights  of  entrie,  and  severall  titles  of  entrie,  by 
force  of  a  condition  (1). 

"  In  one  same  countie."  For  if  the  lands  lye  in  severall 
counties  there  must  be  severall  actions,  and  consequently  seve- 
rall entries,  as  hath  beene  said. 

5  H.  7.  7.  "  -^'^  ^^^  name  of  all,  &c."     If  one  disseise  me  of  two  severall 

4  E.  4. 19.  acres  in  one  countie,  and  I  enter  into  one  of  them  generally, 

12  E.  4. 11-  a.  without  saying,  In  the  name  of  both ;  this  shall  revest  only 

(KTliep.  Lam-  ^^^^  ^^^^  wherein  entrie  is  made,  as  hath  beene  said ;  and  that 

pet's  case.)  is  proved  by  our  bookes,  which  say,  that  if  I  bring  an  assise  of 

(Plo.  Com.  91.)  two  acres,  if  I  enter  into  one  hanging  the  writ,  albeit  it  shall 
revest  that  only  acre,  yet  the  writ  shall  abate. 

"  Whereof  he  hath  title  of  entrie."  Here  in  a  large  sense, 
title  of  entrie  is  taken  for  a  right  of  entrie. 


(9  Rep.  136.  b.) 
(Ant.  48,  49,  50. 
Post.  259.  a.) 
(2  Rep.  31.) 


im-  Sect.  418.  p53.-| 


WOR  if  a  man  will  enfeoff e  another  without  deed  of  certaine  lands  or 

tenements  which  he  hath  in  many  townes  in  one  countie,  and  he  will 

deliver  seisin  to  the  feoffee  of  parcell  of  the  tenements  within  one  towne  in 

the  name  of  all  the  lands  or  tenements  which  he  hath  in  the  same  toione^ 

and 


(1)  The  entry  for  a  condition  broken  has  been  discussed  in  the  preceding 
chapter,  and  the  commentary  and  notes  upon  it. — With  respect  to  entries  for 
avoiding  fines,  there  were  four  modes  of  avoiding  a  fine  at  the  common  law; 
two  by  matter  of  record,  and  two  by  acts  in  pais.  Those  by  matter  of  record 
were,  a  real  action  commenced  within  a  year  and  a  day  after  the  fine  was  levied, 
and  an  entry  of  a  claim  on  the  record  at  the  foot  of  the  fine  itself,  in  this  man- 
ner, talis  venit  et  ajjponit  clameum  suum.  Those  by  acts  in  pais  were  a 
lawful  entry  upon  the  land  by  the  person  who  had  a  right ;  and  if  that  could 
not  be  done,  a  continual  claim.  But  by  the  statute  of  4  H.  7.  all  those  who 
are  afiected  by  a  fine  must  pursue  their  title  by  way  of  action,  or  lawful  entry ; 
so  that  a  claim  entered  on  the  record  of  a  fine  would  now  be  ineffectual.  The 
actual  entry  must  be  made  by  the  person  who  has  a  right  to  the  lands,  or  some 
one  appointed  by  him,  either  by  preceding  command  or  subsequent  assent, 
within  five  years.  See  Plowd.  355.  359.  2  Inst.  518.  3  Rep.  91.  2  Bla.  Rep. 
994. — By  the  statute  of  4  Ann.  c.  16.  sect.  16.  it  is  enacted,  ''  That  no  claim 
or  entry  to  be  made  of  or  upon  any  lands,  tenements,  or  hereditaments,  shall 
be  of  any  force  or  eifect  to  avoid  any  fine  levied,  or  to  be  levied,  with  procla- 
mations, according  to  the  form  of  the  statute  in  that  case  made  and  provided, 
in  the  court  of  common  pleas;  or  in  the  courts  of  sessions  in  any  of  the  coun- 
ties palatine,  or  in  the  courts  of  grand  sessions  in  Wales,  shall  be  a  suflBcient 
entry  or  claim  within  the  statute  of  limitations,  unless  upon  such  entry  or 
claim  an  action  shall  be  commenced  within  one  year  next  after  the  making  of 
such  entry  or  claim,  and  prosecuted  with  effect." — [Note  197.] 


L.  3.  C.  7.  S.  419.    Of  Continuall  Claime.    [253.  a.253 b. 

and  in  other  townes,  cfe.  all  the  said  tenements,  ^c.  passe  hy  force  of 
the  said  livery  of  seisin  to  him  to  whom  such  feoffmeyit  in  such  manner 
is  made,  and  yet  hee  to  whom  such  livery  of  seisin  was  made  hath  no 
right  in  all  the  lands  or  tenements  in  all  the  toivnes  (et  uncore  celuy  a 
que  tiel  livery  de  seisin  fuit  fait,  n'avoit  droit  *  en  touts  les  terres  ou 
tenements  en  touts  les  villes),  hut  by  reason  of  the  livery  of  seisin  made 
of  parcell  of  the  lands  or  tenements  in  one  towne :  a  multo  fortiori,  it 
seemeth  good  reason  that  when  a  man  hath  title  to  enter  into  the  lands 
or  tenements  in  divers  townes  in  one  same  county,  before  entry  by  him 
made,  that  by  the  entry  made  by  him  into  parcell  of  the  lands  in  one 
towne,  in  the  name  of  all  the  lands  and  tenements  to  which  he  hath  title 
to  enter  within  the  same  county,  this  shall  vest  a  seisin  of  all  in  him 
(ceo  t  vest  un  seisin  de  touts  en  luy),  a7id  by  such  entry  hee  hath  pos- 
session and  seisin  in  deed,  as  if  he  had  entred  into  every  parcell. 

I^HIS  is  evident,  but  here  is  a  diversity  betweene  a  feoffment  38  E.  3.  11. 
and  an  entry ;  for  a  man  may  make  a  feoffment  of  lands  in  38  Ass.  23. 
another  county,  and  make  livery  of  seisin  within  the  view,  albeit 
he  might  peaceably  enter  and  make  actuall  livery;  and  so  may 
he  shew  the  recognitors  in  an  assise  the  view  of  lands  in  another 
county;  but  a  man  cannot  make  an  entry  into  lands  within  the 
view  where   he  may  enter  without  .any  feare  (for  it  is  [*]  one 
thing  to  invest,  and  another  to  devest),  as  hereafter  shall  be  [*]  Vide  Sect. 
said  in  the  Section  next  following.  iiext  following. 

"A  midtd  fortiori."  Or  a  minore  ad  majns,  is  an  argument  Vide  Sect.  438. 
frequent  in  our  author,  and  in  our  bookes,  the  force  of  argument 
in  this  place  standing  thus:  if  it  be  so  in  a  feoffment  passing  a 
new  right,  much  more  it  is  for  the  restitution  of  an  antient  right, 
as  the  worthier  and  more  respected  in  law,  which  holdeth  affirm- 
atively, as  our  author  here  teacheth  us. 

The  three  [&c.)  in  this  Section  need  no  explication. 


[-353.1  jl@-  Sect.  419. 


rf-] 


IV HE  second  thing  to  be  understood  is,  that  if  a  man  hath  title  to 
enter  into  any  lands  or  tenements,  if  he  dares  not  enter  into  the 
same  lands  or  tenements,  nor  into  any  parcell  thereof  for  doubt  of  beat- 
ing, or  for  doubt  of  mayming,  or  for  doubt  of  death,  if  he  goeth  and 
approach  as  neere  to  the  tenements  as  hee  dare  for  such  doubt,  and  by 
word  claime  the  lands  to  bee  his,  presently  by  such  claime  he  hath  a 
possession  a7id  seisin  in  the  lands  as  ivell  as  \\  if  hee  had  entred  in  deed, 
although  hee  never  had  possession  or  seisin  of  the  same  %  lands  or  tene- 
ments before  the  said  claime. 

HERE 

t  lands  or  not   in   L.  and  M.   or 
*  en — a,  L.  and  M.  and  Roh.  Ron. 

■f"  vest — est,  L.  and  M.  and  Roh. 
II  t/not  in  L.  and  M.  or  Roh. 


253.  b.  J  Of  Continuall  Claime.  L.  3.  C.  7.  Sect.  419. 

Vide  the  Sect.  TT  ERE  is  to  be  observed,  that  every  doubt  or  feare  is  not  suffi- 
preceding.  XI   cient,  for  it  must  concerne  the  safety  of  the  person  of  a 

(2  Roll.  Abr.  ^^^^  ^^^  ^^^  ^xia  houses  or  goods;  for  if  hee  feare  the  burning 
2  Inst.  483.)  of  his  houses,  or  the  taking  away  or  spoiling  of  his  goods,  this 
7  E.  4.  21.  is  not  sufficient,  because  hee  may  recover  the  same,  or  dammages 

39  H,  6.  5.  ^Q  ^Yie  value  without  any  corporall  hurt. 

Again,  if  the  feare  do  concern  the  person,  yet  it  must  not  bee 
a  vaine  feare,  but  such  as  may  befall  a  constant  man ;  as  if  the 
adverse  partie  lie  in  wait  in  the  way  with  weapons,  or  by  words 
menace  to  beat,  mayhem,  or  kill  him  that  would  enter j  and  so 
in  pleading  must  hee  shew  some  just  cause  of  feare,  for  feare  of 
(9  Rep.  13.)  it  selfe  is  internall  and  secret.  But  in  a  speciall  verdict,  if  the 
39  E.  3.  28.         jurors  doe  finde  that  the  disseisee  did  not  enter  for  feare  of  cor- 

}\  ^  ^'  o  porall  hurt,  this  is  sufficient,  and  shall  be  intended  that  they  had 
tit.  Dures,  2.         i^.,  '  ,  mi-  ■        i  i   ,  ^ 

12  H.  4. 19  20.    evidence  to  prove  the  same,      lahs  emm  debet  esse  metus  qui 

cadere  potest  in  virum  constantem,  et  qui  in  se  continet  mortis 

Bract,  lib.  2.       perictdum,  et  corporis  cruciatum.    Et  nemo  tenetur  se  in/ortuniis 

fol.  16.  b.  et  periculis  exponere. 

Britton,  fol.  19.        -^  "^ 

66.     Fleta,  lib.  3.  cap.  1.  and  lib.  2.  cap.  54.     49  E.  3.  14.     14  H.  4.  13.     39  Ass.  11. 

11  H.  6.  51.     38  H.  6.  27.     39  H.  6.  36.  5.     20  H.  6.  28.     4  E.  4.  17.     12  E.  4.  7. 

28  H.  6.  8.    41  E.  3.  9.     11  H.  4.  6.    8  Ass.  25.    Vide  Sect.  434.    "W.  2.  cap.  49. 

13  H.  4.    Dures,  20. 

And  it  scemeth  that  feare  of  imprisonment  is  also  sufficient, 
for  such  a  feare  sufficeth  to  avoid  a  bond  or  a  deed;  for  the  law 
hath  a  speciall  regard  to  the  safety  and  liberty  of  a  man.  And 
imprisonment  is  a  corporall  damraage,  a  restraint  of  liberty,  and 
a  kind  of  captivity.  But  see  in  the  Second  Part  of  the  Insti- 
tutes, W.  2.  cap.  49.  a  notable  diversity  betweene  a  claime  or 
an  entry  into  land,  and  the  avoidance  of  an  act  or  deed  for  feare 
of  battery. 

"By  such  claime,  he  hath  a  possession  and  seisin,  &c."    Here 
is  to  be  observed,  that  there  be  two  manner  of  entries,  viz.  an 
Vide  Sect.  378.    entry  in  deed,  and  an  entry  in  law.     An  entry  in  deed  is  suffi- 
ciently knowne.    An  entry  in  law  is  when  such  a  claime  is  made 
as  is  here  expressed,  which  entry  in  law  is  as  strong  and  as  for- 
cible in  law  as   an   entry  in  deed,  and  that  as  well  where  the 
11  H.  6.  51.         lands  are  in  the  hands  of  one  by  title  as  by  wrong.     And  there- 
(Post.  2*56.  b.)      fore  upon  such   an   entry  in  law  an  assise  doth  lie,  as  well  as 
upon  an  entry  in  deed,  and  such  an  entry  in  law  shall  avoid  a 
warranty,  &c. 
Vid.  Sect.  442.        ^^t  ^'^^e  is  a  diversity  to  be  observed  betweene  an  entry  in 
PI.  Com.  93.  in    law  and  an  entry  in  deed,  for  that  a  continuall  claime  of  the  dis- 
Ass.  de  fresh-      geisee  being  an  entry  in  law  shall  vest  the  possession  and  seisin 
Ion  of  Sy-^'"  in  ^'^^  for  ^is  advantage,  but  not  for  his  disadvantage.     And 
lane's  case.  therefore  if  the  disseisee  bring  an  assise,  and  hanging  the  assise 

he  make  continuall  claime,  this  shall  not  abate  the  assise,  but 
he  shall  recover  dammages  from  the  beginning;  but  otherwise 
it  is  of  an  entry  in  deed.  See  more  of  this  matter  in  this  chap- 
ter, Sect.  422. 


Sect. 


L.  3.  C.  7.  Sect.  420-21.  Of  ContiiiimU  Claime.     [254.  a. 


l^l^']  B^  Sect.  420. 

y4  iVi)  that  the  law  is  so,  it  is  well  proved  hy  a  plea  of  an  assise  in  the 
booke  of  assises,  an.  28  E.  3.  p.*  32,  the  tenor  whereof  followeth  in 
this  manner.  In  the  county  of  Dorset,  before  the  justices,  it  was  found 
by  verdict  of  assise,  that  the  jylaintiff  tvhich  had  ri(/ht  by  discent  of  in- 
heritance to  have  the  tenements  put  in  plaint,  at  the  decease  of  his  ancestor 
tvas  abiding  in  the  towne  where  the  tenements  were,  f  and  by  paroll 
claimed  the  tenements  amongst  his  neighbours,  but  for  fear e  of  death  hee 
durst  not  approach  the  tenements,  but  bringeth  his  assise,  and  upon 
this  matter  found,  it  was  awarded  that  he  should  recover,  ^c. 

HERE  it  appearcth  that  our  booke  cases  are  the  best  proofes  38  Ass.  p.  2Z. 
what  the  law  is,  Argumentum  ah  authoritate  est  fortissimum 
in  lege.  And  for  proofe  of  the  law  in  this  particular  case,  Lit- 
tleton here  citeth  a  case  in  38  E.  3,  but  it  is  misprinted,  for  the 
originall,  according  to  the  truth,  is  in  the  Booke  of  Assises,  38 
E.  3.  p.  23,  and  not  jy^cidfo  32,  for  there  be  not  so  many  pleas 
in  that  yeare.  And  after  the  example  of  Littleton,  booke  cases 
are  principally  to  be  cited  for  deciding  of  cases  in  question, 
not  any  private  opinion,  teste  meipso.  More  shall  be  said  of  the 
matter  implyed  in  this  Section  in  the  next  following. 


Sect.  421. 

^ HE  third  thing  is  to  know  within  what  time  %  and  by  what  time  the 
claim  which  is  said  continuall  claime  shall  serve  and  aid  him  that 
onaketh  the  claime,  and  his  heires.  And  as  to  this  it  is  to  be  understood, 
that  he  which  hath  title  to  enter,  when  he  will  make  his  claime,  if  he  dare 
approach  the  land,  then  he  ought  to  go  to  the  land,  or  to  parcell  of  it, 
and  make  his  claime  (donques  il  covient  aler  a  la  terre,  ou  a  parcel  de 
ceo,  §  et  faire  son  claime) ;  and  if  he  dare  not  approach  the  land  for 
doubt  orfeare  of  beating  or  maiming,  or  death,  then  ought  he  to  go  and 
approach  as  neere  as  he  dare  toivards  the  land,  or  parcell  of  it,  to  make 
his  claime  (donques  covient  a  luy  d'aler  et  approchcr  auxy  pres  come 
il  osast  vers  la  terre,  ou  parcel  de  ceo,  ||  a  faire  son  claime). 

" /~\UGnT  he  to  go  and  aj)proch  as  ncere,  Sc."  By  this  it 
should  sceme,  that  by  the  authority  of  our  author,  if  the 
disseissee  commeth  as  ncere  to  the  land  as  he  dare,  &c.  and 
maketh  his  claime,  this  should  be  sufficient,  albeit  he  be  not 
within  the  view. 

And  the  great  authoritie  of  the  booke  [*]  in  9  H.  4.  (being  by  [*]  9  H.  4.  5. 

the 

*  p.  32,  not  in  L.  and  M.  or  Roh.         §  a   added    in   L.    and    M.    and 

f  &c.  added  in  L.  and  M.  and  Roh.  Boh. 

J  and  by  what  time,  not  in  L.  and  ||  a — et  L.  and  M.  and  Roh. 

M.  or  Roh. 


254.  a.  254.  b.]  Of  Continuall  Claime.  L.  3.  C.  7.  S.  422. 

the  whole  court)  is  not  against  this ;  for  that  case  is  put  where 
there  is  no  such  feare,  as  here  our  author  mentioneth,  in 
him  that  makes  the  continall  claime,  0^  and  then  he  r254.~| 
that  makes  the  continuall  claime  ought  to  bee  within  L     ^-     J 
the  view  of  the  land  ;  and  therefore  the  authoritie  of 
this  booke,  as  it  is  commonly  conceived,  is  not  against  the  opinion 
of  our  author  in  the  point  aforesaid.   But  then  it  is  further  object- 
ed, that  the  said  booke  is  against  another  opinion  of  our  author 
in  this  Section,  viz.  that  where  there  is  no  feare,  &c.  hee  that 
*  11  H.  6.  31,      maketh  a  continuall  claime  *  ought  to  go  to  the  land  or  to  parcell 
agreeth  with  our  thereof  to  make  his  claime,  and  therefore  in  that  case  he  cannot 
poinr^°     ^^      make  a  claime  within  view  of  the  land.     To  this  it  is  answered, 
(3  Eep.  25.  that  where  a  continuall  claim  shall  divest  any  estate  in  any  other 

Ant.  15.  person  in  any  lands  or  tenements,  there,  as  it  hath  beene  said, 

°*'       ''  he  that  maketh  the  claime  ought  to  enter  into  the  land,  or  some 

part  thereof,  according  to  the  opinion  of  our  author ;  but  where 
the  claime  is  not  to  devest  any  estate,  but  to  bring  him  that 
maketh  it  into  actual  possession,  there  a  claim  within  the  view 
sufficeth  :  as  upon  a  discent,  the  heire  having  the  freehold  in  law 
may  claime  land  within  the  view  to  bring  himselfe  into  actual 
possession,  and  in  that  sense  is  the  opinion  of  Eull  and  the  court 
Vid.  Sect.  177.  to  be  intended.  Et  sic  de  similihus.  But  yet  the  entry  into 
some  parcel  in  the  name  of  the  residue  is  the  surest  way  (1). 


Sect  422. 

J  iV!Z)  if  Ms  adversary  who  occwpidli  the  land,  dieth  seised  in  fee,  or 
in  fee  taile,  within  the  yeare  and  day  after  such  claime,  whereby  the 
lands  descend  to  his  sonne  as  heir  to  him,  yet  may  hee  which  makes  the 
claime  enter  upon  the  possession  of  the  heir,  %  ^-c. 

"  ^[^ITHIN  the  yeare  and  a  day."     It  is  to  bee  observed, 
Vid.  Sect.  385.  '  '      that  the  law  in  many  cases  hath  limited  a  yeare  and  a 

14  H  4  36  ^'     ^^y  ^'^  ^^  *  legall  and  convenient  time  for  many  purposes.     As 
7  E.  3.  37.  '         at  the  common   law,  upon  a  fine  or  final  judgment  given  in  a 
PI.  Com.  356,       ^f;x\t  of  right,  the  party  grieved  had  a  yeare  and  a  day  to  make 
357.  367. 
Mirror,  cap.  2.  §  18.     Britton,  fol.  45.  b.  &  126. 

his 
I  &c.  not  in  L.  and  M.  or  Roh. 


(1)  Even  where  a  declaration  in  ejectment  is  delivered,  though  the  defendant 
appears  to  it  and  confesses  lease,  entry  and  ouster,  yet,  to  avoid  a  fine,  there 
must  be  an  actuall  entry.  This  was  very  solemnly  determined  in  the  king's 
bench,  in  the  case  of  Berrington  v.  Packhurst ;  and  by  the  lords  on  appeal  in 
1758.  See  2  Stra.  1086.  4  Bro.  Par.  Gas.  353.  This  doctrine  has  since  been 
twice  expressly  recognized ;  first,  in  the  case  of  Gates  ex  dimiss.  Wigfall  v. 
Brydon,  3  Burr.  1895;  and  afterwards  in  the  case  of  Goodright  v.  Cator,  Doug. 
460.  In  that  case  lord  Mansfield  states  the  distinction  to  be,  that  where  entry 
is  necessary  to  complete  the  landlord'' s  title,  there,  the  confession  of  lease,  entry, 
and  ouster,  is  suffic.ent ;  but  that  where  it  is  requisite  in  order  to  rebut  the 
defendant's  title,  actual  entry  must  be  made.  The  latter  is  the  case  where  a 
fine  is  to  be  avoided. — [Note  198.] 


L.  3.  C.  7,  S.  423.  Of  Continuall  Claime.  [254.  b.  255.  a. 

his  claime.  So  the  wife  or  heire  hath  a  yeare  and  a  day  to  bring 
an  appeale  of  death.  If  a  villeine  remained  in  antient  demesne 
a  yeare  and  a  day,  he  is  privileged.  If  a  man  be  wounded  or 
poysoned,  &c.  and  dieth  thereof  within  the  yeare  and  the  day,  it 
is  felony.  By  the  antient  law  if  the  feoffee  of  a  disseisor  had  (Post.  2C2.  a.) 
continued  a  yeare  and  a  day,  the  entry  of  the  disseisee  for  his 
negligence  had  beene  taken  away.  After  judgment  given  in  a 
reall  action,  the  plaintife  within  the  yeare  and  the  day  may  have 
a  hahere  facias  seisinam,  and  in  an  action  of  debt,  &c.  a  capias  (Ant.  130.  b.) 
Jieri  facias,  or  a  levari  facias.  A  protection  shall  be  allowed 
but  for  a  yeare  and  a  day,  and  no  longer,  and  in  many  other  cases. 

But  this  time  of  a  yeare  and  a  day  in  case  of  continuall  claime  Vid.  Sect.  385. 
is,  since  our  author  wrote,  altered  by  the  said  statute  of  32  H. 
8.  ca.  33,  as  before  it  appeareth. 


["f-] 


Jl^^-Sect.  423. 


Z?  UTin  this  case  after  the  yeare  and  the  day  that  such  claime  was  made, 
if  the  father  then  died,  seised  the  morroiv  next  after  the  yeare  and  the 
day,  or  any  other  day  after  (Mes  en  cest  cas  apres  I'an  et  le  jour  que 
tiel  claime  fuit  fait,  *si  le  pere  donques  morust  seisi  ademaine  procheine 
apres  I'an  et  le  jour,  ou  f  un  auter  jour  apres),  ^c.  then  cannot  hee 
which  made  the  claime  enter:  and  therefore  if  hee  which  made  the 
claime  will  he  sure  at  all  times  that  his  entrie  shall  not  be  taken  atvay 
by  such  discent,  ^c.  it  behoveth  him  that  tvithin  the  yeare  and  the  day 
after  the  first  claime  |  made,  to  make  another  claime  in  forme  aforesaid, 
and  within  the  yeare  and  the  day  after  the  second  claime  \\  made,  to  make 
the  third  claime  in  the  same  manner,  and  toithin  the  yeare  and  the  day 
after  the  third  claime  to  make  another  claime,  and  so  over,  that  is  to  say 
to  make  a.  claime  within  everie  yeare  and  day  next  after  everie  claime 
made  during  the  life  of  his  adversarie,  and  then  at  what  time  soever  his 
adversarie  dieth  seised,  his  entrie  shall  not  be  taken  away  by  any  discent. 
And  such  claime  in  such  manner  made  (Et  tiel  claime  en  tiel  maner  § 
fait),  is  most  commonly  taken  and  named  Continuall  Claime  of  him 
which  maketh  the  clai^ne,  ^e. 

IT  is  to  be  observed,  that  the  yeare  and  the  day  shall  bee  "^id.  Sect.  385. 
accounted,  as  the  day  whereon  the  claime  was  made  shall  be  ^  °  '  '  ■■' 
accounted  one  :  as  for  example,  if  the  claime  were  made  2.  die 
Martii,  that  day  shall  be  accounted  for  one;  for  Lilfktou  saith  in 
the  Section  next  before  (after  the  claime  made)  and  then  the  yeare 
must  end  the  first  day  of  March,  and  the  day  after  is  the  second 
day  of  March. 

See  for  the  computation  of  the  yeare,  de  anno  hiscxtili,  and  of 

the 

*  si   nul    auter   clayme   fuist   fait         ||  made  not  in  L.  and  M.  or  Roh. 
added  in  L.  cmd  M.  and  Roh.  §  d'estre  added  in  L.  and  M.  and 

f  a  added  in  L.  and  M.  and  Roh.  Roh. 
i  made  not  in  L.  and  M.  or  Roh. 


255.a.255.b.J  Of  Continuall  Claime.  L.3.C.7.S.424425. 

the  day  naturall  and  artificiall,  and    other  parts  of  the  yeare, 
264.  344.  359!      [.^1  Bracton,  \lj]  Britton,  and  [c]  Fleta,  excellent  matter. 
(2  Roll.  Abr.  1521.)     [i]  Britton,  fol.  209.     [c]  Fleta,  lib.  6.  cap.  11.     Statute  de  anno 
BisextUi.    21  H.  3.    Dier,  17  Eliz.  345. 


Sect.  424. 

'QUT  yet  in  the  case  aforesaid,  wliere  his  adversarie  dieth  within  the 
yeare  and  the  day  next  after  the  *  claime,  this  is  in  laiv  a 
-continuall  claime,  insomuch  as  his  adversarie  J||@^  within  the  rQST.l 
yeare  and  the  next  day  after  the  same  claime  dieth.  For  he  \_  ^-  J 
ivhieh  made  his  claime  7ieedeth  not  to  make  any  other  claime, 
hut  at  ivhat  time  he  will  within  the  same  yeare  and  day  (car  il  ne  besoigne 
a  celuy  que  fist  son  claime  de  faire  ascun  auter  claime,  mes  a  quel  temps 
que  il  t  voit  deins  mesme  I'an  et  jour),  S^c. 

Vid.  Sect.  414.  This  is  evident. 


'SnT..zz.-,  Sect.  425. 

AIj&O,  if  the  adversarie  he  disseised  within  the  yeare  and  the  day 
after  such  claime,  and  the  disseisor  thereof  dieth  seised  ivithin  the 
yeare  and  the  day,  ^c.  such  dying  seised  shall  not  grieve  him  which  made 
the  claime,  hut  that  he  may  enter,  ^c.  For  whosoever  hee  he  that  dieth 
seised  ivithin  the  yeare  and  the  day  after  such  claim  made,  this  shall  not 
hurt  him  that  made  the  claime,  hut  that  he  may  enter,  ^c.  albeit  there 
were  many  dying  seised,  and  many  discents  within  the  same  yeare  and 
day,  ^c. 

HERE  it  appeareth,  that  the  continuall  claime  doth  not  only 
extend  to  the  first  disseisor,  in  whose  possession  it  was  made, 
but  to  any  other  disseisor  that  dieth  seised  within  the  yeare  and 
day  after  the  continuall  claime  made.  And  whereas  our  author 
speaketh  of  a  second  disseisor,  &c.  herein  is  likewise  implyed 
not  only  abators  and  intrudors,  but  the  feoffees  or  donees  of  the 
disseisors,  abators,  or  intrudors,  and  any  other  feoffee  or  donee 
immediate  or  mediate,  dying  seised  within  the  yeare  and  day,  of 
such  continuall  claime  made. 

Sect. 

*  first  added  in  L.  and  M.  and  Roh.         f  voit  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  7.  S.  426-7-8.      Of  Coiitinuall  Claime.      [256.  a. 


Sect.  426. 

A  LSO,  if  a  man  he  disseised,  and  the  disseisor  dieth  seised  within 
the  yeare  and  day  next  after  the  disseisin  made,  whereby  the 

[256.~j  tenements  descend  to  his  heire,  in  this  10°"  case  the  entrieofthe 
a.  J  disseisee  is  taken  away,  for  the  yeare  and  day  which  should  aid 
the  disseisee  in  such  case*,  shall  not  bee  taken  from  the  time  of 
title  of  eritrie  accrued  unto  him,  hut  only  from  the  time  of  the  claime 
made  by  him  in  manner  aforesaid.  And  for  this  cause  it  shall  he  good 
for  such  disseisee  to  make  his  claime  f  in  as  short  time  as  he  can  after 
the  disseisin,  ^c. 

THIS  in  case  of  a  disseisor  is  now  holpen  by  the  statute  made  32  H.  8.  cap.  33. 
since  Littleton  wrote,  as  bath  beene  said  ;  for  if  the  disseisor  Vide  Sect.  385. 
die  seised  within  five  yeares  after  the  disseisin,  though  there  be  /^^'j.  233  a ) 
no  continuall  claime  made,  it  shall  not  take  away  the  entry  of  the 
disseisee,  but  after  the  five  yeares  there  must  be  such  continuall 
claime  as  was  at  the  common  law  :  but  that  statute  extendeth 
not  to  any  feoflPee  or  donee  of  the  disseisor  immediate  or  mediate, 
but  they  remaine  still  at  the  common  law,  as  hath  beene  said. 


Sect.  427. 

ALSO,  if  such  disseisor  occupieth  the  lands  fortie  yeares,  or  more 
yeares  (Item  si  tiel  disseisor  occupia  la  terre  per  xl.  ans,  ou  per 
X  plusors  ans),  without  any  claime  made  by  the  disseisee,  ^c.  §  and  the 
disseisee  a  little  before  the  death  of  the  disseisor  makes  a  claime  in  the 
forme  aforesaid,  if  so  itfortuneth  that  ivithin  the  yeare  and  the  day  after 
guch  claime  the  disseisor  die,  ^c.  the  ent?'ie  of  the  disseisee  is  congeable, 
^c.  And  therefore  it  shall  bee  good  for  such  a  man  which  hath  not  made 
claime,  aiid  which  hath  good  title  of  entrie  \\,  when  he  heareth  that  his 
adversarie  lieth  languishing,  to  make  his  claime,  ^c. 

n'^HIS  is  evident  enough,   and  in  respect  of  that  which  hath 
J-    beene  said,  needeth  not  to  be  explained. 


Sect.  428. 

ALSO,  as  it  is  said  in  the  cases  put,  where  a  man  hath  title  of  entrie 
by  cause  of  a  disseisin,  ^c.  the  same  law  is  where  a  man  hath  right 
to  enter  by  cause  of  another  title,  ^c. 

HERE 

*  &c.  added  in  L.  and  M.  §  and  not  in  L.  and  M. 

f  &c.  added  in  L.  and  M.  |1  &c.  added  in  L.  and  M. 

\  plus  added  in  L.  and  M. 


2o6.b.257.  a.]  Of  Continuall  Claime.  L.3.  C.  7.  S.429-30. 

TT  ERE  title  is  taken  in  his  large  sense  to  include  a  right. 

"Another  title,  S!^^&c."  Here  is  implyed  abators  or  f^SG."! 
intruders,  and  not  only  their  disseisors,  but  the  feoiFees  L     b.     J 
or  donees  of  disseisors,  abators,  or  intruders,  or  any 
other  so  long  as  the  entrie  is  congeable. 


Sect.  429. 

ALSO,  of  the  said  foresaying  (de  les  dits  *  presidents)  thou  mayst 
know  {my  sonne)  two  things.  One  is,  where  a  man  hath  title  to  enter 
upon  a  tenant  in  taile,  if  he  makefh  such  a  claime  to  the  land,  then  is  the 
estate  taile  defeated,  for  this  claime  is  as  an  entrie  made  hy  him,  and  is  of 
the  same  effect  in  law  as  if  he  had  bin  upon  the  same  tenements,  and  had 
entred  into  the  same,  as  before  is  said,  f  -^^^  ^^^^^^  when  the  tenant  in 
taile  immediately  after  such  claime  continue  his  occupation  in  the  lands, 
this  is  a  disseisin  made  of  the  same  tenements  to  him  which  made  such 
claime,  and  so  by  consequent,  the  tenant  then  hath  a  fee  simple. 

"  Presidents."      This  should  be  precedents,   and   so   is   tlie 
originall,  and  this  agreeth  with  the  right  sense  of  Littleton. 
(Ant.  233.)  And  here  it  appeareth,  that  a  continuall  claime,  which  is  an 

entrie  in  law,  is  as  strong  as  an  entrie  in  deed. 

Vide  Sect.  650,        "  Title  to  enter."     Here  title  to  enter  is  taken  in  the  large 
and  659,  &c.       sense  for  right  of  entrie. 


Sect.  430. 

THE  second  thing  is,  that  as  often  as  he  which  hath  right  of  entrie 
maketh  such  claime,  %  and  this  7iotwith standing  his  adversary  continue 
his  occupation,  §  so  often  the  adversary  doth  ivrong  and  disseisin 
to  him  which  made  the  claime.  "^^  And  for  this  cause  so  often  r257."l 
may  he  which  makes  the  same  claime  (que  fist  ||  mesme  le  claime)  L  a.  J 
for  every  such  ivrong  and  disseisin  done  unto  him,  have  a  writ 
of  trespasse,  j  Quare  clausum  fregit,  &c.  and  recover  his  dammages,  ^c. 

HEREBY  also  it  appeareth,  that  an  entrie  in  law  is  equiva- 
lent to  an  entry  in  deed. 

"  Have  a  writ  of  trespasse,  quare  clausum  fregit,  and  recover 

his 

*  dites  precedents  L.  and  M.  nor  in  MSS.  before  mentioned.      It 
t  And  not  in  L.  and  M.  or  Roh.  may  be  here   observed,  that  the  older 
+  and  tMs,—&c.  L.  and  M.  and  Roh.  copies  of  Littleton  are  not  divided  into 
I  &c.  added  in  L.  and  M.  and  Roh.  Sections,  which   seem   to   have^  been 
il  mesme  not  in  L.  and  M.  or  Roh.  first  injudiciously  marked  by  West  m 
I  Quare  clausum  fregit,  &c.  and  re-  the  edition  1583,  though  his  divisions 
cover  hisdammages,&c.  or  he  may  have  have  been  since  retained  for  the  cou- 
rt writ,    (the   beginning  of  the  next  venience  of  citation. 
Section)  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  7.  Sect,  431.     Of  Continuall  Claiine.      [257.  a. 

his  dammages."     The  disseisee  shall  have  an  action  of  trespasse  (2  Roll.  Abr. 
against  the  disseisor,  and  recover  his  dammages  for  the  first  ^^0.  l  Rep.  98. 

X  -^1       4.  u    ^     i-x  f  1  1  Leo.  302. 

entry  without  any  regresse,  but  alter  regresse  he  may  have  an  20  h.  6.  15. 
action  of  trespasse  with  a  cojitinuando,  and  recover  as  well  for  38  H.  6.  27.) 
all  the  meane  occupation  as  for  the  first  entry.     And  here  note, 
that  Littleton  doth  here  include  costs  within  dammages. 


Sect.  431. 

r)R  he  may  have  a  ivrit  upon  the  statute  of  R.  2.  made  in  the  fifth 
yeare  of  his  reigne,  supposing  by  his  tvrit  that  his  adversarie  had 
entred  into  the  lands  or  X  tenements  of  him  that  made  the  claime,  ivhere 
his  entry  was  not  given  hy  the  law,  ^c.  and  by  this  action  he  shall  re- 
cover his  dammages,  ^c.  And  if  the  case  were  such,  that  the  adver- 
sarie occupied  the  tenements  with  force  and  amies,  or  ivith  a  multitude 
of  people  at  the  time  of  such  claiine,  ^c.  ||  immediately  after  the  same 
claime  may  hee  which  made  the  claimefor  every  such  act  have  a  writ  of 
forcible  entry,  and  shall  recover  his  treble  dammages,  ^c.  (1.) 

THIS 

I  or — and,  L.  and  M.  and  Roh.  ||  iramediateli/  after  the  same  claime — 

then,  L.  and  M.  and  Roh. 


(1)  Perhaps  this  passage  is  not  quite  accurate.  Till  the  reign  of  Richard  IL 
the  party  disseised,  if  his  attempt  were  made  soon  after  the  disseisin,  might 
recover  his  possession  hy  force  ;  but,  by  a  statute  passed  in  the  fifth  year  of 
that  reign,  it  was  enacted,  that  none,  from  thenceforth,  should  make  any 
entry  into  lands  and  tenements,  but  in  cases  where  entry  was  given  by  the 
law ;  and  in  that  case,  not  with  a  strong  hand,  or  with  a  multitude  of  people, 
but  only  in  a  peaceable  and  easy  manner ;  and  that  persons  convicted  of  doing 
the  contrary  should  be  punished  by  imprisonment,  to  be  ransomed  at  the 
king's  pleasure.  By  a  statute  passed  in  the  fifteenth  year  of  the  same  reign, 
it  was  enacted,  that,  upon  complaint  of  any  such  forcible  entries,  to  the  justices 
of  peace,  they  should  take  sufficient  power  of  the  county,  and  go  to  the  place 
where  such  force  was  made  j  and  if  they  found  any  that  held  such  place  forci- 
bly, after  such  entry  made,  they  should  be  taken  and  put  into  the  next  gaol, 
there  to  abide  convict  by  the  record  of  the  same  justices,  until  they  had  made 
fine  and  ransom  to  the  king.  By  this  it  appears,  that  Littleton  is  equally 
wrong  in  his  account  of  the  punishment  inflicted  by  that  statute,  and  the 
offence  it  intended  to  correct.  These  statutes  of  the  reign  of  Richard  II.  have 
been  confirmed,  explained,  and  in  some  respects  extended  by  the  stat.  -4  H.  4. 
ch.  8.  8  H.  6.  ch.  9.  23  II.  8.  ch.  U.  31  Eliz.  ch.  11.  and  21  Jac.  1.  ch.  15. 
See  Burn's  Just.  vol.  ii.  181.  It  should  be  observed,  that,  in  case  an  action 
is  brought  on  these  statutes,  if  the  defendant  make  himself  a  title,  which  is 
found  for  him,  he  shall  be  dismissed  without  any  inquiry  concerning  the  force  ; 
for  howsoever  he  may  be  punishable  at  the  king's  suit,  for  doing  what  is  pro- 
hibited by  statute,  as  a  contemner  of  the  laws  and  disturber  of  the  peace,  yet 
he  shall  not  be  liable  to  pay  any  damages  for  it  is  the  plaintiff,  whose  injustice 
gave  him  the  provocation  in  that  manner  to  right  himself.  See  1  Haw.  141. 
3  Burr.  1698.  1731.— [Note  199.] 


257.  a.  257.  b.]  Of  Continuall  Claime.  L.  3.  C.  7.  Sect.  431. 

rDoct  Pia.  381.)  T'HIS  is  the  statute  of  5  R.  2.  cap.  7. 

37  H.  6.  35.  -L 

34  H  6  30.  13  H.  7.  15.  10  H,  6.  14.  2  E.  4.  18.  21  E.  4.  5.  74.  13  E.  2.  3. 
27  Ass.  64.  38  Ass.  9.  44  E.  3.  20.  10  H.  7.  27.  Keylwey,  1.  b.  5  R.  2.  cap.  7. 
(F.  N.B.  248,  249.) 

"  By  this  action  he  shall  recover  his  dammages." 
This  is  to  be  understood,  that  he  shall  recover  damages  for 
the  first  torcious  entry,  but  not  for  the  mean  profits  in  this 

2  E.  4.  24.  b.       action,  though  he  made  a  regresse.    And  here  note,  that  also  he 

9  E.  4.  4.  b.         ^\xd\\  recover  his  costs  of  suit,  eocpensce  litis,  which  Littleton  doth 
16  H.   .   .  a.       JQci^jg  within  these  words  (dammages,  &c.) 

(2  Inst.  289.  "  Dammages."     Damna  in  the  common  law  hath  a  speciall 

Post.  355.  b.  signification  for  the  recompence  that  is  given  by  the  jury  to  the 

10  Rep.  115,  piaintife  or  defendant  (A),  for  the  wrong  the  defendant  hath 

11  Rop.  56.)  done  unto  him  (2). 

(3  Inst.  176.  ^^  Multitude.'"     One  or  more  may  commit  a  force,  three  or 

Halo's  PI.  C.       more  may  commit  an  unlawfull  assembly,  a  riot  or  a  rout.     A 
^^''•^  multitude  here  spoken  of  (as  some  have  said)  must  be  ten  or 

1*660.1.0.4.)     more.     Multitudinem  decern  faciunt.     And  so  (say  they)  it  is 
said  de  grege  hominum.     But  I  could  never  read  it  restrained 
by  the  common  law  to  any  certaine  number,  but  left  tn  the  dis- 
cretion of  the  judges  (3). 
"J.  writ  of  forcible  entry,  and  shall  recover  his  trehle 

3  e"  4*  19!'24!  dammages."  This  writ  B@-  is  grounded  upon  the  stat-  r357."| 
F.  N.  is.  248.'  ute  of  8  H.  6.  and  lieth  either  where  one  entreth  with  L  ^-  J 
11  E.  4. 11.  b.  force,  or  where  he  entreth  peaceably  and  detaineth  it 
\^^'q%^'  with  force,  or  where  he  entreth  by  force  and  detaineth  it  by  force. 
19  H.  6.  And  in  this  action  without  any  regresse  the  plaintife  shall  recover 
Register,  97.  treble  dammages,  as  well  for  the  meane  occupation  as  for  the 
?  N  B  249  a    ^^^  ^^^"^^  ^^  ^^"^^^  °^  ^^^  statute.     And  albeit  he  shall  recover 

(2  Cr'o.  17.  19.  .31.  148.  151.  199.  214.  633.  639.  1  Roll.  Rep.  406.  Sid.  97.  149. 
Noy,  136.  1  Cro.  561.  2Inst.  289.  4  Inst.  176.  c.  15.  1  Leo.  327.)  (15  R.  2.  c.  2. 
8  H.  6.  c.  9.    23  H.  8.  c.  15.    31  El.  c.  11.    21  Jac.  c.  15.) 

treble 

(A)  defendant  seems  to  he  printed  in  this  place  hy  mistake  instead  of  demandant. 
See  Mr.  Bitso's  Intr.  ;>.  119. 


(2)  Some  observations  on  the  progress  of  our  law,  with  respect  to  damages, 
costs,  and  mesne  profits,  are  to  be  found  in  note  1.  fol.  355.  b. 

(3)  By  the  common  law  there  must  be  three  persons  at  least  to  constitute  a 
riot.  By  the  1  Geo.  1.  c.  5.  twelve  persons  at  least  must  be  unlawfully  assem- 
bled, to  be  within  that  act.  By  the  13  Car.  2.  st.  1.  c.  5.  not  more  than 
tioenty  names  are  to  be  signed  to  a  petition  to  the  king,  or  either  house  of  par- 
liament, for  any  alteration  of  matters  established  by  law  in  church  or  state  j 
and  no  petition  is  to  be  delivered  by  a  company  of  more  than  ten  persons. 
By  the  bill  of  rights,  or  declaration  delivered  by  the  lords  and  commons  to 
the  prince  and  princess  of  Orange,  Feb.  13,  1688,  and  afterwards  enacted  in 
parliament,  when  they  became  king  and  queen,  the  fifth  article  is,  "  That  it  is 
"  the  right  of  the  subjects  to  petition  the  king,  and  that  all  commitments  and 
'<  prosecutions  for  such  petitioning  are  illegal."  Sir  William  Blackstone  ex- 
pressly says,  that  the  right  of  the  subject  to  petition,  as  declared  by  this  sta- 
tute, is  under  the  regulations  of  the  13  Car.  2.  But  a  question  may  be  made, 
whether  the  declaration  contained  in  the  bill  of  rights  was  not,  in  this  particu- 
lar a  repeal  of  the  13  Car.  2.— [Note  200.] 


L,  3.  C.  7.  Sect.  432-33.  Of  Continuall  Claime.    [257.  b. 

treble   dammages,  yet  shall  he  recover  costs  which  shall  be 
trebled  also. 

One  may  commit  a  forcible  entry,  as  hath  beene  said,  in  re- 
spect of  the  armour  or  weapons  which  he  hath  that  are  not 
usually  borne,  or  if  he  doe  use  violence,  and  threats  to  the  ter- 
rour  of  another.  And  if  three  or  foure  goe  to  make  a  forcible 
entry,  albeit  one  alone  use  the  violence,  all  are  guilty  of  force. 
If  the  master  commeth  with  a  greater  number  of  servants  than 
usually  attend  on  him  it  is  a  forcible  entric. 

It  is  to  be  understood,  that  there  is  a  force  implied  in  law,  as 
every  trespasse  and  rescous  and  disseisin  implieth  a  force,  and  is 
vi  et  armis;  and  there  is  an  actuall  force,  as  with  weapons, 
number  of  persons,  &c.  and  when  an  entry  is  made  with  such 
actuall  force  an  action  doth  lie  upon  the  same  statute  (1).  See  lo  H.  7. 12. 
before  more  of  force  and  armes.  Sect.  240.  33  H.  6.  20. 


Sect.  432. 

J^LSO,  it  is  to  he  seen,  (Item*,  il  est  a  veier),  if  the  servant  of  a  man 
■   ivlio  hath  title  to  enter,  may  hy  the  commandement  of  his  master 
make  continuall  claime  for  his  master  or  not. 

This  needeth  no  explication. 


Sect.  433. 

J  iVi)  it  seemeth  that  in  some  cases  he  may  doe  this  :  for  if  he  hy  his 
commandement  commeth  to  any  parcell  of  the  land,  and  there 
maketh  claime,  ^c.  in  the  name  of  his  master,  this  claime  is  good 
enough  for  his  master,  for  that  he  doth  all  that  which  his  master  should 
f  or  ought  to  do  in  such  case,  ^c.  %  Also  if  the  master  saith  to  his 
servant,  that  he  dares  not  come  to  the  land,  nor  to  any  parcell  of  it,  to 
make  his  claime,  S^e.  and  that  he  dare  approch  no  neerer  to  the  land 
than  to  such  a  place  called  Bale,  and  command  his  servant  to  go  to  the 
same  place  of  Dale,  and  there  make  a  claime  for  him,  ^c.  if  the  servant 

doth 

*  il — icy,  L.  and  M.  and.  Roh.  |  Also  not  in  L.  and  M.  or  Ron. 

f  or  ought  to  do — not  in  L.  and  M. 
or  Roh. 

(1)  The  21  Ja.  e.  15.  provides  a  remedy  for  lessees  for  years.  Tenants 
by  copy  of  court  roll,  guardians  in  chivalry,  tenants  by  elegit,  statute  mer- 
chant, or  statute  staple,  if  they  be  ousted  by  force,  or  withheld  by  force  out 
of  their  lands  or  tenements.  Till  then,  if  a  man  entered  by  force  on  a  copy- 
holder, the  lord,  as  the  freehold  and  inheritance  were  supposed  to  be  in  him, 
might  bring  against  the  person  entering,  a  writ  of  forcible  entry,  or  might 
indict  him.  Upon  restitution  to  the  lord,  the  copyholder  might  ent«r. — 
[Note  201.] 


258.  a.]      Of  Continuall  Claime.      L.  3.  C.  7.  Sect.  434. 

this,  ^c-  this  also  seemeth  a  good  claime  for  his  master,  as  if 
his  master  were  Jl®^  there  in  his  j^roper  ^Jerson  (sicome  son  r^SS.! 
master  la  fuit  en  *  proper  person),  for  that  the  servant  did  L     ^-     J 
all  that  which  his  master  durst  and  ought  to  do  hy  the  law  in  such  a 
case,  ^c. 

HERE  it  appeareth  that  where  the  servant  doth  all  that  which 
he  is  commanded,  and  which  his  master  ought  to  doe,  there 
it  is  as  sufficient  as  if  his  master  did  it  himselfe  :  for  the  rule  is, 
Qui  per  alium  facit,  per  seipsum  facere  videtur. 

7  E.  3.  69.  a.  b.  "  By  commandem.ent."     If  an  infant  or  any  man  of  full  age 

45  E.  3.  have  any  right  of  entrie  into  any  lands,  any  stranger  in  the  name 

45^E*3^'     '  ^^^  ^^        ^'^^  of  the  infant  or  man  of  full  age  may  enter  into  the 

tit.  Brie'fe,  589.  lands,  and  this  regularly  shall  vest  the  lands  in  them  without  any 

20  E.  3.  62.  commandement,  precedent,  or  agreement  subsequent.     [*]  But 

11  a'^'^^'^^ii  ^^  ^  disseisor  levy  a  fine,  with  proclamation  according  to  the 

39  Ass.  p.  is!  statute,  an  estranger  without  a  commandement  precedent,  or  an 

10  H.  7. 12.  a.  agreement  subsequent  within  the  five  yeares  cannot  enter  in  the 

31  H.  8.  tit.  name  of  the  disseisee  to  avoid  the  fine.    And  that  resolution  was 

tit.  Fauxifer  grounded  upon  the  construction  of  the  statute  of  4  H.  7.  cap.  24. 

Kecovery,  29.  But  an  assent  subsequent  within  the  five  yeares  should  be  suffi- 

[*]  Lib.  9,  fo.     cient.      Onmis  enim  ratihahitio  retrotrahitur,  et  mandato  sequi- 
106.  a.  the  Lord  .  i     ^i    i.  -j 

Awdleye's  caso.  paratur,  as  hath  beene  said. 

"Aha  if  the  master  saith  to  his  servant  that  he  dares  not,  &c." 
Here  it  appeareth,  that  where  the  servant  pursueth  the  com- 
mandement of  his  master,  and  doth  all  that  which  his  master 
durst  and  ought  to  doe  by  the  law,  this  is  sufficient.  And 
although  the  master  feareth  more  than  the  servant,  or  admit  that 
the  servant  hath  no  fearf.  at  all,  yet  if  he  goeth  as  farre  as  his 
master  durst,  and  as  he  commanded,  it  is  sufficient.  And  this  is 
implyed  in  this  Section. 

Sect.  434. 

A  LSO,  if  a  man  he  so  languishing,  or  so  decrepite,  that  he  cannot 
hy  any  meanes  come  to  the  land,  nor  to  any  '\  parcell  of  it,  or  if  there 
bee  a  recluse,  which  may  not  hy  reason  of  his  order  goe  out  of  his  house  |, 
if  such  manner  of  person  (si  tiel  maner  ||  de  person)  commandhis  servant 
to  goe  and  make  claime  for  him,  and  such  servant  dare  not  goe  to  the 
land,  nor  to  any  parcell  of  it  (en  tiel  servant  ne  osast  aler  al  a  terre,  § 
ne  a  ascun  parcel  de  ceo),  for  douht  of  heating,  mayhem,  or  death,  T[ 
^c.  and  for  this  cause  the  servant  commeth  as  nere  to  the  land  as  he  dareth 
for  such  douht  (pur  tiel  doubt  \.  ),  and  maketh  **  the  claime,  ^c.  for  his 
master,  it  seemeth  that  such  claime  for  his  master  is  strong  enough,  and 
good  in  law.  For  otherwise  his  master  should  bee  in  a  very  great  mis- 
chief e  ;  for  it  may  well  he  that  such  a  person  ivhich  is  sicke,  decrepit,  or 

recluse, 

*  son  added  in  L.  and  M.  and  Roh.  ^  &c.  not  in  L.  and  M.  or  Boh. 

■\  parcell  not  in  L.  and  M.  or  Boh.  |  doubt — pavour.  in  L.  and  M. 

X  &c.  added  in  L.  andM.  and  Boh.  and  Roh. 

II  de  not  in  L  and  M.  **  the — such,  in  L.  and  M.   and 

§  ne — ou,  L.  and  M.  and  Roh.  Boh. 


L.  3.  C.  7.  Sect.  434.  Of  Continiiall  Claime.  [258.  a.  258.  b. 

recluse^  cannot  jinde  any  servant  which  dare  go  to  the  land,  or  to  any 
parcell  of  it  (que  osast  aler  a  la  terre,  ne  f  ascum  parcel  de  eel),  to 
make  the  claime  for  Mm,  ^-c. 

T)  EGULARLY  it  is  true,  that  where  a  man  doth  lesse  than  (Ant.  52.  a.) 

-»  »  the  commandement  or  authority  committed  unto  him,  there 

(the  commandment  or  authority  being  nc^t  pursued)  the  act  is 

void.     And  where  a  man  doth  that  which  he  is  authorised  to 

doe  and  more,  there  it  is  good  for  that  which  is  warranted,  and  (Hob.  154.) 

void  for  the  rest;  yet  both  these  rules  have  divers  exceptions  (^  ^^^-  289.) 

and  limitations  (1). 

For  the  first,  Littleton  here  putteth  the  case  where  a  servant 
doth  lesse  than  he  is  commanded,  and  yet  it  sufficeth,  for  that 
Impotentia  excusat  legem  ;  for  seeing  the  master  cannot,  and  the 
servant  dare  not,  enter  into  the  land,  it  sufficeth  that  he  come 
as  neere  to  the  land  as  he  dare. 

If  a  man  makes  a  letter  of  attorney  to  deliver  seisin  to  1.  S.  11  H.  4. 8. 
upon  condition,  and  the  attorney  delivereth  it  absolute,  this  is  12  Ass.  24. 
void :  and  so  some  hold  if  the  warrant  be  absolute,  ,t  ^'^'\, 

[358.1  and  he  delivereth  f^^  seisin  upon  condition,  the  liverie  Mo.  280.)' 
b.       I  is  void.  See  before 

Sect.  419. 

"For  doxibt  of  heating,  mayhem,  or  death''     See  the  Second  (Aut.  243.  b.) 
Part  of  the  Institutes,  W.  2  cap.  49,  a  diversity  betweene  the 
making  of  an  entry  or  a  claime,  and  the  avoydance  of  an  act  or 
deed. 

"  Otherwise  his  master  should  be  in  a  very  great  mischiefe." 
Argumentum  ah  inconvem'enti  est  vcdidum  in  lege,  quia  lex  non 
permittit  aliquod  inconoeniens.  And  as  hath  beene  often  ob- 
served before,  Nihil  quod  est  inconveniens  est  licitum. 

"  Recluse,"  Reclusus,  Heremita,  seu  Anchorita,  so  called  by  46  E.  3. 
the  order  of  his  religion ;  he  is  so  mured  or  shut  up,  quod  solus  Petition,  18. 
semjjer  sit,  et  in  clausura  sua  sedet ;  and  can  never  come  out  of  ^^  w'|'a\ 
his  place.      Seorsim,  enini  et  extra  conversationem  civ  Hem  hoc  30.  a! 
jjrofessionis  genus  semper  habitat.    Note  here,  albeit  the  recluse 
or  anchorite  be  shut  up  himselfe,  so  as  he  by  his  order  is  not  to 
come  out  in  person,  yet  to  avoid  a  discent  he  must  command 
one  to  make  claime,  and  such  a  recluse  shall  always  appeare  by 
attorney  in  such  cases  where  others  must  appeare  in  proper  per- 
son.    Impotentia  enim  excusat  legem,. 

Sect. 

f  a  added  in  L.  and  M.  and  Roh. 


(1)  Where  there  is  a  complete  execution  of  a  power  and  something,  ex 
ahundanti,  added,  which  is  improper,  there  the  execution  shall  be  good,  and 
only  the  excess  void;  but  where* there  is  not  a  complete  execution  of  a  power, 
or  where  the  boundaries  between  the  excess  and  execution  are  not  distinguish- 
able, it  will  be  bad.  See  Alexander  v.  Alexander,  2  Ves.  sen.  644.  On  this 
doctrine,  the  reader  may  always  be  safely  referred  to  Mr.  Sugden's  treatise  on 
that  abstruse  and  important  subject. — [Note  202.] 


2o8. b. 259.  a.J  Of  ContinuallClaime.  L.  3.  C. 7.  S.  435-36. 


Sect.  435. 

J)  UT  if  the  master  of  such  servant  bee  in  good  health,  and  can  and 
dare  well  goe  to  the  lands,  or  to  pareell  of  it,  to  ynake  his  claime, 
^c.  if  such  master  command  his  servant  to  go  to  any  jyarcell  of  the  land 
to  make  claime  for  him,  ||  and  wheti  the  servaiit  is  in  going  to  doe  the 
commandement  of  his  master  (A),  he  heareth  by  the  way  such  things  as 
he  dare  not  come  to  any  pareell  of  the  land  to  make  the  claime  for  his 
master,  and  therefore  he  commeth  as  neere  to  the  land  as  he  dare  for 
doubt  of  death,  and  there  maketh  claime  for  his  master,  and  in  the 
name  of  his  master,  ^c.  it  seemeth  that  the  doubt  in  law  in 
such  case  shall  be,  ivhether  such  claime  shall  availe  his  master  rS59."j 
g®^'  or  not,  for  that  the  servant  did  not  all  that  which  his  L  3,.  J 
master  at  the  time  of  his  commandement  durst  have  done,  ^c- 
Quaere. 

(9  Rep.  79.)  '"PHIS  continuall  claime  is  void,  for  that  the  servant  doth  lesse 
-I  than  that  which  is  expressly  commanded,  and  there  is  no 
impotencie  or  feare  in  the  master. 

(A)  "t«  in  going,  &c."     This  is  lord  Coke's  translation,  and  renders  literally  the  text,  "est  en 
alant." 

Sect.  436. 

A  LSO,  some  have  said,  that  where  a  man  is  in  prison  and  is  dis- 
seised, and  the  disseisor  dieth  seised  during  the  time  that  the  dis- 
seisee is  in  prison,  lohereby  the  tenements  descend  to  the  heire  of  the 
disseisor,  they  have  said,  that  this  shall  not  hurt  the  disseisee  ichich  is 
in  prison,  but  that  he  well  may  enter,  notwithstanding  such  a  discent, 
because  hee  could  not  make  continuall  claime  when  he  was  in  prison. 

(1  Roll.  Abr.       "  [A/ HERE  a  man  is  in  prison  and  is  disseised."     For  if  hee 
6S7.)  '  ^  hee  disseised  when  he  is  at  large,  and  the  discent  is  cast 

9  H.  7.  24.  during  the  time  of  his  imprisonment,  this  discent  shall  binde 

Jrl.  L-OID.  oDU.  ^  XT  *  1      1  'x 

Bracton,  lib.  5.     him.    Excusatur  autem  guts  qiidd  clameuin  suum  non  opposuerit, 
fol.  436.  si  tempore  litigii  in  jjrisond  detentus  fuerit,  ita  quod  venire  non 

?^'*!*^^' ..  vossit,  nee  miitere,  quia  ntdli  vertitur  in  duhium,  et  ubi  eadem 

fol.   116.  b.  ^        .      '  .  ^  /.  •,       •   7     -         •   ?    .  -    7  •       7    1     ^  •  • 

rieta  lib.  6.        ratio  et  idem  jus  ent,  xdeo  videtur  quod  excusari  debet  quis  si 
cap.  52,  53.  per  vim  mnjorem,   vel  per  fraudem,  extra  prisonam   detentus 

i,  hb.  6.  cap.  7.  jy^^rit,  ita  quod  venire  non  possit  nee  mittere,  dum  tamen  hoc 
per  certa  judecia  probart  jyoterit. 

^'Because  hee  covid  not  make  contiuuaU  claime  when  he  teas  in 
prison."     Here  is  to  bee  observed  by  the  authority  of  Littleton, 
that  he  is  not  enforced  in  this  case  by  law  to  doe  it  by  his  servant 
or  any  other  by  his  warrant  or  commandement,  for  things  done 
by  deputie  are  seldome  well  done,  but  everie  man  will  see  his 
PI.  Com.  360.       owne  businesse  most  effectually  speeded  and  performed:  and 
in  Stowel's  case,  that  it  may  be  once  spoken  for  all,  the  reason  that  a  man  impri- 
soned 
11  cCr.  added  in  L.  and  M.  and  Roh. 


L.  3.  C.  7.  Sect.  437.  Of  Continiiall  Claime.  [259.  a.  259.  b. 

soned  shall  not  be  bound  in  this  and  the  like  cases  is,  for  that 
by  the  intendment  of  law  he  is  kept  (as  it  is  presumed  in  law) 
without  intelligence  of  things  abroad,  and  also  that  he  hath  not 
libertie  to  go  at  large  to  make  entrie  or  claime,  or  seeke  coun- 
sell.  And  so  note  a  diversitie  between  a  recluse  who  might 
have  intelligence,  and  a  man  in  prison. 


*  Sect.  437. 

J^UT  the  opinion  of  all  the  justices,  p.  11  H.  7.  tvas^  that  if  the  dis- 
seisin bee  before  the  imijrisonment,  although  the  dying  seised  be  he 
being  in  the  prison,  his  entrie  is  taken  away. 

''PHIS  is  of  a  new  addition,  and  mistaken,  for  there  is  no  such 
-L   opinion,  p.  11  H.  7.  but  it  is,  9  H.  7.  fol.  24.  b. 


A  ND  also,  if  hee  which  is  in  prison  be  outlaived  in  an  action  of  debt 
or  trespasse,  or  in  an  appeale  of  robberie,  ^-c.  hee  shall  reverse  this 
outlawry  ptronounced  agaiiist  him  (il  reversera  tiel  utlagarie  §  envers 
Ijiy  pronounce),  ^c. 

tQSO.n    ^i^^^  TTE  shall  reverse  this  outlawry."     -A^oto,  the  (Post.  260.  a. 
b.     J  originall  is  reversa  tiel  utlagarie  per  brief e  Ante  128.  b.) 

de  error (1),  and  so  it  would  bee  amended;  for  out-  [i'-^'    'g\    ' 

(2  Roll.  Abr.  803,  804.  2  Inst.  665.  1  Leo.  22.  186.)  Mirror,  cap.  .3.  Britton,  fol.  21. 
Fleta,  lib.  1.  cap.  28.  &  lib.  2.  cap.  59.  Bracton,  lib.  2.  2  E.  4.  1.  4  E.  4.  10.  21  E. 
4.  73.  11  H.  7.  5.  21  H.  6.  50.  9  H.  4.  3.  21  H.  6.  Utlary.  36.  7  H.  6.  27.  21  E. 
4.  88.  22  E.  4.  37.  18  E.  3.  Villenage,  47.  21  E.  4.  37.  33  H.  6.  45,  46.  44  E.  3. 
Villeine,  41.  4  H.  4.  19.  11  H.  4.  34.  3  Eliz.  Dyer,  192.  2  Eliz.  176.  5  Eliz.  ibid. 
223.  19H.  6.  2.  8  H.  6.  37.  37  H.  6.  19.  (Doc.  Pla.  230.  398.)  (Ant.  248.  b.)  8  H. 
4.  7.  21  H.  7.  13.  10  H.  6.  58.  20  H.  6.  20.  21  H.  6.  55.  22  H.  6.  18.  39  H.  6.  1. 
33  H.  6.  51.  45.  38  H.  6.  33.  21  E.  4.  94.  21  H.  7.  33.  5  H.  7.  1.  12  H.  6.  8.  11 
H.  6.  67.  19.     1  E.  4.  2.    27  H.  8.  2.    38  Ass.  pi.  17.    Vide  Sect.  439. 

lawries 

§  per   brief  d'errour,  &c.  pur  ceo     garie,  added  in  L.  and  M.  and  Roh. 
qu'il  fuist  en  prison  al  temps  d'utla-     and  in  31/SS. 


*  This  Section  is  not  in  L.  and  M.  or  Roh.  nor  in  the  edit.  1577,  which  is 
esteemed  more  correct  than  the  common  copies. 

(1)  A  writ  of  error  properly  lies,  where  false  judgment  is  given  in  any  court 
which  is  a  court  of  record.  It  was  formerly  hold,  that,  by  the  common  law, 
no  amendment  could  be  permitted,  unless  within  the  very  term  in  which  the 
judicial  act  so  recorded  was  done.  But  the  courts  now  allow  of  amendments 
at  any  time  while  the  suit  is  depending. — After  the  termination  of  the  suit 
the  judgment  can  only  be  reversed  by  writ  of  error.  From  the  inferior  courts 
it  lies  to  the  king's  bench  and  common  pleas; — from  the  common  pleas  to  the 
king's  bench; — from  the  king's  bench  to  the  house  of  lords.  To  amend  errors 
in  a  base  court,  not  of  record,  a  writ  of  false  judgment  lies. — A  writ  of  error 
only  lies  upon  matter  of  law.  There  is  no  method  of  reversing  an  error  on 
the  determination  of  facts  but  by  an  attaint  or  a  new  trial.  See  Bla.  Com.  3 
vol.  c.  25.  s.  3.     F.  N.  B.  20.     4  Inst.  21.— [Note  203.] 


259.  b.]  Of  Continiiall  Claime.  L.  3.  C.  7.  Sect.  438. 

lawries  may  bee  reversed  two  manoer  of  wayes,  viz.  by  plea,  or 
by  writ  of  error.  By  plea,  when  the  defendant  commeth  in 
upon  the  capias  utlayatum,  &c.  hee  may  by  plea  reverse  the 
same  for  matters  apparent,  as  in  respect  of  a  supersedeas,  omis- 
sion of  processe,  variance,  or  other  matter  apparent  in  the  record  : 
and  yet  in  these  cases  some  hold,  that  in  another  terme  the  de- 
fendant is  driven  to  his  writ  of  error. 

But  for  any  matters  in  fact,  as  death,  imprisonment,  service 
of  the  king,  &c.  he  is  driven  to  his  writ  of  error,  unlesse  it  be 
in  case  of  felonie,  and  there  in  favorevi  vitse  he  may  plead  it. 

But  albeit  imprisonment  be  a  good  cause  to  reverse  an  out- 
lawrie,  yet  it  must  be  by  processe  of  law  in  invitum,  and  not 
by  consent  or  covin,  for  such  imprisonment  shall  not  avoid  the 
outlawrie,  because  upon  the  matter  it  is  his  owne  act. 


Sect.  438. 

ALSO,  if  a  recovery  hee  hy  defoMlt  against  such  a  one  as  is  in  prison 
(si  un  recoverie  soit  f  per  default  vers  tiel  que  est  en  prison)  he 
shal  avoid  the  Judgement  by  a  ivrit  of  error,  because  he  was  in  prison 
at  the  time  of  the  default  made,  ^c.  And  for  that  such  matters  of  re- 
cord shal  not  hurt  him  which  is  in  prison,  but  that  they  shall  bee  re- 
versed, S^c.  a  multo  fortiori,  it  seemeth  that  a  matter  in  fact,  scilicet, 
such  discent  had  ivhen  he  was  in  prison  shall  not  hurt  him,  ^c.  especi- 
ally seeing  he  could  not  goe  out  of  prison  to  make  continuall  claime. 

5  E.  3.  50.  b.       ''PHIS  is  evident  enough. 

7  H.  6.  38.  1 

Fleta,  lib.  6.  "-^y  a  v:rit  of  error."     For  hee  shall  have  no  writ  of  disceit, 

cap.  07.  &  24.  because  the  summons  was  according  to  the  law  of  the  land,  by 
48  and  the  e'jf-  summoners  and  veiors,  and  the  land  taken  into  the  king's  hand 
position  thereof,  by  the  pernor. 

2  part  lustit. 

Discount  51  " ^^  default.     Default  is   a  French   word,   and   defalta  is 

legally  taken  for  non-appearance  in  court.     There  bee  divers 
causes  allowed  by  law  for  saving  a  man's  default;  as,  first,  by 
Bracton,  lib.  5.    imprisonment,  whereof  Littleton  here  speaketh.     2.  Per  inun- 
%f^^'  \'-h  fi         dationem    aquarum.       3.    Per    tempestatevi.       4.    Per  pontem, 
cap.  7.  14.  fractmn.     5.  Per  navigium  suhtractum  per  fraudem  petentis, 

3  11.  6.  46.  non  enim  debet  quis  se  periculis  et  infortuniis  gratis  exponere, 

38  E.  3.  5.  ^gi  subiicere.      6.  Per  minorem  setatem.      7.  Per  defensionem 

31  11   6  .  .  ... 

Barre  66  summonitionts per  legem.     8.  Per  mortem  attornati  si  tcnens  m 

12  11.4.13.  temp>ore  nonnovit.     9.  Si petens  essoniatus  sit.     10.  Siplacitum 

oO  E.  3.  9.  mittatur  sine  die.     11.  Per  breve  de  warrantid  diei.     But  sick- 

^  II  4  «  '  nesse  (as  one  holds)  is  no  cause  of  saving  a  default,  because  it 

I II.  7.'  3!  may  be  so  artificially  counterfeited,  that  it  cannot  be  knowne. 

F.  N.  B.  17. 

Bract,  lib.  4.  fol.  367.  369.     Glan.  lib.  1.  cap.  8.     28  H.  6.  11.     4  H.  5.     Challenge,  153. 
Br.  iSaver.  Def.  45.    (Cro.  Eliz.  306.) 

"  Record." 

f  ewe  added  in  L.  and  M.  and  Boh. 


L.  3,  C.  7.  Sect.  438.      Of  Continiiall  Claime.     [260.  a. 

t  B@"  "  Record"     (1)  Recordnm,  is  a  memoriall  or  Glanvil.  lib.  8. 

^60.  j  remembrance  in  rolles  of  parcliuient,  of  the  proceed-  [{^^'s/foi.'^'is'e"' 
^'      -^ings  and  acts  of  a  court  of  justice  -vvliich  hath  power  Britton  in  pro- 
to   hold   plea  according  to  the  course  of  the  common  law,  of  emino  &  cap.  27. 
reall  or  mixt  actions,  or  of  actions  quare  vi  et  armis,  or  of  per- 
sonall  actions,  whereof  the  debt  or  dauimage  amounts  to  fortie 
shillings  or  above,  which  wee  call  Courts  of  Record,  and  are 
created  by  parliament,  letters  patent,  or  prescription. 

It  is  aptly  derived  of  reeordari,  which  is  to  keepe  in  memorie 
or  record,  as  it  is  said,  qudd  dicere  nihil  aliud  est  quum  reeordari  ; 
and  in  the  same  sense  the  poet  useth  it,  si  rite  audita  rccordor.  cicero. 
Bat  legally  records  are  restrained  to  the  rolles  of  such  only  as  Virgil. 
are  courts  of  record,  and  not  the  rolles  of  inferiour,  nor  of  any  Pi.  Com.  79.  b. 
other  courts  which  yivoccoil  not  seciindnmlci/em  et  con  suet  udinem  ?^f'^' '^  *  ^  •^''^* 
Anglice-.     And  the  rolles  being  the  records  or  memorialls  of  the  ^^^'^j^'  g  ^'g^ 

iudsres  of  the  court  of  record,  import  in  them  such  uncontrollable  ."57  H.  6.  21.  b. 

•*     °  ^  11  11.  4.  26.  b. 

21  H.  6.  34.  Error,  Br.  7-3.  7  H.  7.  4.  19  Ass.  7.  lib.  4.  fol.  52.  in  Rawlin's  case. 
Glanvil.  lib.  8.  cap.  S.  Bractnn,  lib.  3.  fol.  166.  Britton,  cap.  27.  lib.  6.  fol.  11.  Pentle- 
man's  case,  and  30,  45.  lib.  7.  fol.  30.  lib.  8.  fol.  60.  b.  &  67.  a.     7  H.  6.28,    19  H.  6.  9, 

credit 

(1)  The  public  records  of  the  kingdom  are  considered  to  relate  to  the 
proceeding  of  the  houses  of  parliament,  the  court  of  chancery,  the  courts  of 
common  law,  and  the  revenue.  A  general  table  of  them,  distinguished  under 
these  different  heads,  is  to  be  found  in  the  appendix  to  the  report  from  the 
committee  appointed  to  view  the  Cottonian  library.  See  the  report  and  the 
appendix,  page  183.  The  rolls  or  records  of  parliament  were  published 
in  the  course  of  his  late  majesty's  reign,  in  six  volumes  folio,  under  the 
immediate  auspices  of  the  house  of  peers.  This  extensive  and  laborious 
undertaking  is  executed  with  the  greatest  accuracy ;  it  presupposes  no  common 
share  of  antiquarian  and  diplomatic  learning  in  the  gentlemen  concerned  in  it, 
A  part  of  it  was  the  work  of  the  late  Mr.  Morant ;  all  the  rest  was  completed 
by  Mr.  Astle,  the  keeper  of  the  records  in  the  Tower,  and  Mr.  Topham,  of 
Lincoln's-Tnn.  It  should  be  observed,  that  the  proceedings  of  the  legislature 
till  the  reign  of  Edward  I.  were  exceedingly  irregular,  and  greatly  defective 
in  point  of  form.  They  are  sometimes  penned,  so  as  to  appear  to  come  from 
the  king  alone;  sometimes  as  issued  jointly  by  the  king  and  lords;  sometimes 
the  assent  of  the  commons  is,  and  sometimes  is  not,  expressed  ;  sometimes 
the  autliority  for  passing  the  acts  is  mentioned  ;  and  sometimes  the  acts  are 
in  the  form  of  charters. — The  first  summons  of  the  knights  of  shires  to  parlia- 
ment, extant  on  record,  is  in  the  49th  year  of  Henry  III. — The  first  regular 
summons  directed  to  the  sheriff  for  tlie  election  of  citizens  and  burgesses,  is 
in  the  23d  of  Edward  I. — In  that  reign  the  proceedings  of  the  legislature 
assumed  a  more  reg^iilar  form ;  but  far  removed  from  that,  in  which  they 
appear  to  present.  The  consent  of  the  commons  to  the  levying  of  taxes  for 
the  king  gave  them  great  weight.  They  took  advantage  of  this  cii-cumstanco 
to  obtain  a  remedy  for  the  grievances  they  had  to  complain  of. — In  the  rcigu 
of  Edward  III.  the  mode  of  presenting  their  petitions,  and  of  receiving  tlicir 
answers,  was  regularly  practised.  If  the  petition  and  the  answer  to  it  were 
of  such  a  nature  as  to  require  an  express  and  now  provisiim  to  be  made  for 
it,  the  king,  with  the  assistance  of  his  council  and  of  the  judges,  framed,  from 
such  petition  and  answer,  an  act,  which  was  usu;illy  entered  on  the  statute  roll ; 
but  if  an  express  and  new  provision  were  not  roijuired,  the  petition  itself  and 
the  king's  answer  to  it  were  entered  on  the  parliament  roll,  and  then  usually 
styled  an  ordinance. — Alterations  and  improvements  gradually  took  place; 
but  it  was  not  till  the  reign  of  Henry  VI.  that  these  petitions  of  the  commons 
were  reduced;  in  the  first  instance,  into  the  body  of  the  bill. — [Note  204.] 


260.  a.]     Of  Continuall  Claime.     L.  3.  C.  7.  Sect.  438. 

credit  and  veritie,  as  tliey  admit  no  averment,  plea,  or  proofe  to 
tlae  contrarie.  And  if  such  a  record  be  alleaged,  and  it  be 
pleaded  that  there  is  no  such  record,  it  shall  be  tried  only  by 
it  selfe  ;  and  the  reason  hereof  is  apparent,  for  otherwise  (as  our 
old  authors  say,  and  that  truly)  there  should  never  be  any  end  of 
controversies,  which  should  be  inconvenient.  Of  courts  of  record 
you  may  read  in  my  Reports  :  but  yet  during  the  terme  wherein 
any  judiciall  act  is  done,  the  record  remaineth  in  the  brest  of  the 
judges  of  the  court,  and  in  their  remembrance,  and  therefore  the 
roll  is  alterable  during  that  terme,  as  the  judges  shall  direct;  but 
when  the  terme  is  past,  then  the  record  is  in  the  roll,  and  admit- 
teth  no  alteration,  averment,  or  proofe  to  the  contrarie. 

If  a  grant  by  letters  patents  under  the  great  scale  be  pleaded 
and  shewed  forth,  the  adverse  party  cannot  plead  nul  tiel  record, 
for  that  it  appears  to  the  court  that  there  is  such  a  record ; 
but  inasmuch  as  it  is  in  nature  of  a  conveyance,  the  partie  may 
denie  the  operation  thereof,  therefore  he  may  plead  non  concessit, 
and  prove  in  evidence  that  the  king  had  nothing  in  the  thing 
granted,  or  the  like,  and  so  it  was  adjudged.  But  to  return  to 
Littleton:  What  then?  shall  a  man  that  is  in  prison  be  privileged 
from  suits  or  outlawries  ?  Nothing  lesse ;  for  if  the  tenant  or 
defendant  be  in  prison,  he  shall  upon  motion,  by  order  of  the 
court,  be  brought  to  the  barre,  and  either  answer  according  to 
law,  or  else  the  same  being  recorded,  the  law  shall  proceed 
against  him,  and  he  shall  take  no  advantage  of  his  imprison- 
ment. 


(Doc.  Pla.  3or, 
308.  1  Leo.  65.) 
18  Eliz. 
Dier,  353. 
3  Mar.  Di.  129. 
PI.  Com.  232. 
Seignior  Berke- 
ley's case. 
16  H.7.  11.  b. 
22  H.  8.  Re- 
cord. Br.  65. 
39  H.  6.  4. 
3  Eliz.  Dier,  187. 
lib.  6.  fol.  15. 
Eden's  case. 
Mich.  31  & 
32  El.  Rot.365. 
In  Bankle  Roy, 
inter  Eden  & 
Franklj'n  & 
Browne. 
(4  Rep.  Hind's 
case.) 

7  H.6.  38. 

8  H.  6. 16, 


"  A  multo  fortiori."  Here  is  an  argument,  a  minori  ad  ma- 
jus  (A),  and  the  force  of  our  author's  argument  is  this:  If  a 
man  in  prison  shall  not  be  bound  by  a  recoverie  by  default  for 
want  of  answer  in  court  of  record  in  a  reall  action,  which  is 
matter  of  record  (the  height  and  strength  whereof  hath  beene 
somewhat  touched)  d  multo  fortiori,  a  discent  in  the  countrey, 
which  is  matter  of  deed,  shall  not  for  want  of  claime  binde  him 
Vide  Sect.  418,  that  is  in  prison.  And  as  the  argument  a.  minori  ad  majus  doth 
ever  hold  (as  our  author  hath  alreadie  told  us)  affirmatively,  so 
the  argument  ol  majora  ad  minus  doth  ever  hold  negatively,  as 
our  author  here  teacheth  us  ;  and  the  reason  hereof  is  this,  quod 
■in  minori  valet,  valebit  in  majoi'ij  et  quod  in  majori  non  valet, 
nee  valehit  in  minori. 

"  Seeimj  he  could  not  go  out  of  prison,  &c."  By  this  it  appear- 
eth,  that  a  man  in  prison  by  processe  of  law  ought  to  be  kept 
in  sahd  ct  arcta  cusfodid,  and  by  the  law  ought  not  to  goe  out 
though  it  be  with  the  keeper,  and  with  the  leave  and  sufferance  of 
he  gaoler  :  but  yet  imprisonment  must  be,  custodia  et  non  pcena  ; 
for  career  ad  homines  custodiendos,  non  ad  puniendos  dari  debet. 

Sect. 


(A)  It  should  be  said  to  he  a  majori  ad  minus.  For  the  argument  of  Littleton  in  Sect. 
438.  is  eridenthj  such  ;  and  lord  Coke,  a  few  lines  farther  on  says,  "  so  the  arj^ument  4 
majori  ad  minus  doth  ever  hold  negatively,  as  our  author  here"  (i.e.  in  Sect.  438.) 
"  teacheth  us."  Jlr.  Bitso  has  made  an  observation  to  the  same  ejj'ect.  See  his  Intr, 
p.  119, 


L.  3.  C.  7.  S.  439.   Of  ContinuaU  Claime.  [260.  a.  260.  b. 


Sect.  439. 

TN  the  same  manner  it  seemeth,  where  a  man  is  out  of  the  reahne  in 
the  king's  service,  for  the  businesse  of  the  realme,  if  such  a  one  be 
disseised  wheti  he  is  in  service  of  the  Icing,  and  the  disseisor  dieth  seised, 
^c.  the  disseisee  being  in  the  king's  service  (si  tiel  *  home  soit  disseisie 
quant  il  est  en  service  le  roy,  f  et  le  disseisor  morust  seisie,  le  disseisie 
esteant  en  le  service  le  roy),  that  such  discent  shall  not  hurt  the  dis- 
seisee; but  for  that  hee  could  not  make  continuall  claime,  J  it  seemes  to 
them,  that  when  he  commeth  into  England  (que  quant  il  |1  vient  en 
Engleterre,)  he  may  enter  upon  the  heire  of  the  disseisor,  ^c.  For  such 
a  man  shal  reverse  an  outlaivrie  §  pronounced  against  him  during  the 
time  that  hee  tvas  in  the  king's  service,  ^c.  therefore,  a  multo  fortiori, 
he  shall  have  aid  and  indemnitie  by  the  law  in  the  other  case,  ^-c. 

"  f^  UT  of  the  realme,"  (id  est)  extra  regnum  ;  as  much  to  say,  6  R.  2.  Protect 

as   out  of  the  power  of  the  king  of  England  as  of  his  46.    Vide  Sect, 

crowne  of  England ;  for  if  a  man  be  upon  the  sea  of  England,  ,(^^'^  q^^.  ggj 

he  is  within  the  kingdom  or  realme  of  England,  and  within  the  5  Rep.  Con- 

liseance  of  the  king  of  England,  as  of  his  crowne  of  England,  stable's  case. 

And  yet  ahum  mare  is  out  of  the  jurisdiction  of  the  cog  \         ' 
360.1  common  law,  and  within  the  Jg®"  jurisdiction  of  the        '  rsH.  3. 


[ 


bU.    common  law,  ana  witum  tue  jgfegr  jurisciiction  or  tne  rsH.  3, 

b.     J  lord  admirall,  whose  jurisdiction  is  verie  antient,  and  p°(.'  -^  9  H.  3, 

long  before  the  reigne  of  Edward  the  third,  as  some  „      ^  \^  ■?" 

V  V     il      1  c  /^7  /  n    1  Temps  E.  1. 


have  supposed,  as  may  appeare  by  the  lawes  of  Oleron  (so  called,  Avowrie,'l92. 
for  that  they  were  made  by  king  Richard  the  first  when  he  was  Rot.  Vascon. 
there)  that  there  had  beene  then  an  admirall  time  out  of  minde,  "^  f''<l' ^'-^' 
and  by  many  other  antient  records  in  the  reignes  of  Henrie  the  1  pars.  Pat.' 
third,  Edward  the  first,  and  Edward  the  second  is  most  mani-  10  E.  2.   8  E,  2. 
fpof  Coron.  399. 

^^'""  Staundf.  PL 

Coron.  51. 

See  hereafter  in  another  case,  which  Littleton  put  in  his  chap-  Vide  Sect.  677. 
ter  of  Remitter ;  there  he  saith,  beyond  the  sea.     This  great  (iiob.  212.) 
officer  in  the  Saxon  language  is  called  Acn  mere  al,  (i.  e.)  over 
all  the  sea,  prafectua  maris,  sive  classis,  archithalassus :  and  in 
antient  time   the   office  of  the  admiraltie  was  called  custodia 
marince  Angluv,,  or  maritivue  Anglice. 

And  note  Littleton  saith  not,  beyond  the  sea,  or  extra  quatuor  3  r.  3.    Cont. 
maria,  for  a  man  revera  may  be  intra  quatuor  maria,  and  yet  Claime,  13. 
out  of  the  realme  of  England.     But  intra  quatuor  maria,  or 
extra,  is  taken  by  construction  to  be  within  the  realme  of  Eng- 
land, or  the  dominions  of  the  same. 

But  here  a  question  maybe  demanded.  What  if  a  man  he  out  of 
the  realme,  and  a  recoverie  is  had  against  him  in  a  pracipc  by  de- 
fault, whether  shall  he  avoid  it  in  a  writ  of  error,  as  well  as  he 
should  do  the  outlawrie,  or  if  he  had  beene  imprisoned  at  the  time 
of  such  recoverie  by  default  ?     And  it  seemeth  that  he  shall  not 

avoid 

*  home  not  in  L.  and,  M.  ■.  "j*  &c.  added  in  L.  and  M.  and  Rob. 

■j-  et  le  disseisor  morust  seise,  le  ||  revient,  in  L.  and  M. 

disseisee  esteant  en  le  service  le  roy,  §  lohich  is  added  in  L.  and  M. 
not  in  L.  and  M. 


260.  b.  261.  a.]  Of  Continuall  Claime.  L.  3.  C.  7.  S.  440. 

avoid  the  recoverie,  for  by  that  meanes  a  man  might  be  infinitely 
delayed  of  his  freehold  and  inheritance  whereof  the  law  hath  so 
great  a  regard.  And  few  or  none  goe  over,  but  it  is  either  of 
their  owne  free  will,  or  by  suit,  for  what  cause  soever;  and  he 
is  not  in  that  case  without  his  ordinarie  remedie,  either  by  his 
writ  or  higher  nature,  or  by  a  quod  ei  deforceat.  But  outlawrie 
in  a  personall  action  shall  be  avoided  in  that  case,  qiiiade  mini- 
mis non  curat  lex,  and  otherwise  he  should  be  without  remedie. 
See  Section  437,  and  note  the  diversitie  betweene  that  case  of 
the  imprisonment,  and  this  of  being  beyond  sea.  And  Littleton 
putteth  the  case  of  imprisonment,  and  omitteth  the  being  be- 
yond sea  here :  neither  have  I  seefne  any  booke  to  warrant,  that 
he  that  is  beyond  sea  shall  in  this  case  avoid  the  recoverie  by 
default. 

Bract,  lib.  5.  ^^  In  the  Icing's  service."    Bracton  sheweth,  that  the  exception 

fol.  436.  of  being  beyond  sea  is,  quia  fuit  in  servitio  domini  regis  idtra 

mare,  viz.  apud  talem  locum,  and  that  case  is  cleere:  but  you 

shall  heare  the  opinion  of  Bracton  in  the  next  Section,  where 

hee  is  not  in  the  service  of  the  king. 

Sect.  440. 

A  LSO,  others  have  said,  that  if  a  man  he  out  of  the  realme,  though 
hee  he  not  in  the  king's  service,  if  such  a  ma7i  heing  out  of  the  realme 
he  disseised  of  lands  or  tenements  within  the  realme,  and  the  disseisor 
die  seised,  ^c.  the  disseisee  heing  out  of  the  realme,  it  seemeth  unto  them, 
that  when  the  disseisee  commeth  into  the  realme,  that  he  may  well  enter 
upon  the  heir  of  the  disseisor  (que  il  poit  *  enter  sur  I'heire  le  disseisor), 
^c.  and  this  seemeth  unto  them  for  two  causes.  One  is,  that  hee  that 
is  out  of  the  realme  cannot  have  knoivledge  of  the  disseisin  made  unto 
him  hy  understandiny  of  the  laiv,  no  more  than  that  a  thing  done  out 
of  the  realme  may  hee  tried  ivithin  this  realm.e  hy  the  oath  of  12  men;  f 
and  to  comjjell  such  a  man  to  make  continuall  claime,  which  hy  the 
understanding  of  the  laio  can  have  no  knoivledge  or  conisance  of  such 
disseisin  made  or  done,  this  shall  he  inconvenient,  namely,  tohen  such 
a  disseisin  is  done  unto  him  when  he  was  out  of  the  realme,  and  also 
the  dying  seised  ivas  done  tohen  he  was  out  of  the  realme:  for  in  such 
case  he  may  not  hy  possihilitie  after  the  common  presumption  make  con- 
tinuall claime;  hut  otherioise  it  should  he  if  the  disseisee  were  ivithin 
the  realme  at  the  time  of  the  disseisin,  or  at  the  time  of  the  dying  seised 
of  the  disseisor. 


Bract,  lib.  5.  fol.     A  ND  herewith  the  antient  law  of  England  is  agreeable  with 
436.  b.  &  163.      jLJL  Littleton,  and  the  law  at  this  day.     So  as  it  is  vetus  d;  con- 
216  217     Flet    *'*^"'*   opinio.      Excusatur  etiam  qui>>  quod   claineura 
lib.'e.  cap.  52,53.  S^^  non  ap>2)osuerit,  tit  si  toto  tempore  litigii  fuit  ultra  fQGl.T 
13  H.  4.  mare  quacunque  occasioue.    And  this  is  also  agreeable  L    ^'     J 

9  H  4  3  ^^^^  our  yeare  bookes  (1). 

21  H.  6.     Error,  27.     33  H.  6.  1.     21  H.  6.  34.     26  II.  8.  can.  18.     5  &  6  E.  6.  cap.  11. 

''No 
*  bien  added  in  L.  and  M.  and  Roh.     f  <f'c.  added  in  L.  and  M.  and  Roh. 

(1)  The  JUS  3IARI  of  the  king  may  be  considered  under  the  two-fold 

distinction 


L.  3.  C.  7.  Sect.  MO.    Of  Continiiall  Clairne.        [261.  a. 

"  No  more  than  a  thing  done  out  of  the  realme  may  hee  tried 
within  this  realme  hy  the  oath  of  12  men ."  And  in  this  rule  of  law  42  E.  3.  2  &  3. 
there  is  warily  and  truly  put  by  Littleton,  these  words,  {hy  the 
oath  of  twelve  men)  meaning  by  a  jury.  For  by  certificate  a  thing  Vide  Sect.  102. 

done 

distinction  of  the  right  of  jurisdiction,  which  he  exercises  by  his  admiral,  and 
his  right  of  ipropriety  or  ownership. 

WITH  RESPECT  TO  THE  RIGHT  OF  JURISDICTION,  the  subject 
is  elaborately  discussed  by  Mr.  Selden,  in  his  Mare  Clausum,  a  noble  exertion 
of  a  vigorous  mind,  fraught  with  profound  and  extensive  erudition.  In  the  first 
part  of  it,  he  attempts  to  prove,  that  the  sea  is  susceptible  of  separate  dominion  . 
In  this,  he  has  to  combat  the  opposite  opinions  of  almost  all  the  civilians,  and 
particularly  the  celebrated  declaration  of  one  of  the  Antonines  (L.  9.  D.  De 
Lege  Rhodia),  "  Ego  quidem  mundi  dominus,  lex  auteni  maris,  d:c."  by  which, 
the  emperor  has  been  generally  considered  to  have  disclaimed  any  right  to  the 
dominion  of  the  sea.  For  a  different  interpretation  of  this  law,  Mr.  Selden 
argues  with  great  ingenuity.  In  this,  he  is  followed,  in  some  measure,  by 
Bynkershoock,  in  his  treatise  De  Lege  Rhodia  de  Jactu,  Llhcr  Singular  is,  in  the 
2d  vol.  of  the  edition  of  his  works  published  by  Vicat,  Col.  Allob.  1761. — 
Mr.  Selden,  in  the  second  part  of  his  work,  attempts  to  show  that,  in  every 
period  of  the  British  history,  the  kings  of  Great  Britain  have  enjoyed  the  ex- 
clusive dominion  and  property  of  the  British  seas,  in  the  largest  extent  of  those 
woi-ds,  both  as  to  the  passage  through  and  the  fishing  within  them. — He  treats 
his  subject  methodically,  and  supports  his  position  with  the  greatest  learning 
and  ingenuity. — The  reader  will  probably  feel  some  degree  of  prepossession 
against  the  extent  of  this  claim;  but  he  will  find  it>upported  by  a  long  and 
forcible  series  of  arguments,  not  only  from  prescription,  from  history,  from  the 
common  law,  and  the  public  records  of  this  country,  but  even  from  the 
treaties  and  acknowledgments  of  other  nations.  Here  he  is  opposed  by  Bynkers- 
hoock, in  his  Dissertatio  de  Dominio  Maris,  also  published  in  the  second  edition 
of  his  works.  But  it  will  be  a  great  satisfaction  to  the  English  reader  to  find, 
how  much  of  the  general  argument  used  by  Mr.  Selden,  is  conceded  to  him  by 
Bynkershoock.  Even  on  the  most  important  part  of  the  argument,  the  ac- 
knowledgment of  the  right  by  foreign  princes,  Bynkershoock  makes  him  con- 
siderable concessions:  "Plus  momenti,"  says  he,  "adferre  videntur  gentium 
"  testimonia,  quas  illud  Anglorum  imperium  agnovere.  De  confessionibus 
"■  loquor  non. injuria  extortis,  sed  libcre  et  sponte  factis.  Esse  autem  hujusmodi 
"  quasdam  confessiones,  ncutiquam  negari  poterit." — After  this  acknowledg- 
ment, corroborated  as  it  is  by  other  arguments  used  by  Mr.  Selden,  many  will 
think  his  positions  completely  established.  The  chief  objection  made  by 
Bynkershoock,  to  the  right  of  the  crown  of  England  to  the  dominion  of  the 
sea  is,,  the  want  of  uninterrupted  possession,  as  he  terms  it  of  that  dominion. 
"  So  long  as  a  nation  has  possession  of  the  sea,  just  so  long,"  says  Bynkers- 
hoock, "  she  holds  its  dominion.  But  to  constitute  this  possession,  it  is  ne- 
"  cessary  that  her  navies  should  keep  from  it  the  navies  of  all  other  nations, 
"  and  should  themselves  completely  and  incessantly  navigate  it,  avowedly  in 
"  the  act  or  for  the  purpose  as  asserting  her  sovereignty  to  it."  This,  he  con- 
tends, has  not  been  done  by  the  English;  on  this  ground  therefore  he  objects 
to  their  right  of  dominion  of  the  English  sea;  and  on  the  same  ground  he 
objects  to  the  right  of  the  Venetians  to  the  dominion  of  the  Adriatic,  and 
to  the  right  of  the  Genoese  to  the  dominion  of  the  Ligustic.  But  this  seems 
carrying  the  matter  too  far. — If  it  be  admitted,  (of  which  there  unquestionably 
are  many  instances),  that  the  sovereign  power  of  a  state  may  restrain  her  own 
subjects  from  navigating  particular  seas,  she  may  also  engage  for  their  not 
doing  it  in  her  treaties  with  other  nations.  It  can  never  be  contended,  that, 
after  such  a  treaty  is  entered  into,  the  acts  of  possession  mentioned  by  Bynkers- 
hoock, 


261.  a.]       Of  Continiiall  Claime.   L.  3.  C.  7.  Sect.  MO. 

(Ant.  74.  a.)        done  beyond  sea  may  be  tried,  as  Littleton  himselfe,  Sect.  102, 
l^ii  ^i*^'  ^"^' 1  <     bath  set  downe.  And  all  matters  done  out  of  the  realme  of  Eng- 

1  H.  4.  Clip.  14.      ,  .  .  ,  1         ^  p  1      11    1  •      1 

13  II.  4.  f.  4.        laud  concerning  war,  com  bate,  or  deeds  oi  armes,  shall  be  tried 

48  E.  3.  2  &  3.     and  determined  before  the  constable  and  marshall  of  England, 

before  whom  the  triall  is  by  witnesses,  or  by  combate,  and  their 

proceeding  is  according  to  the  civill  law,  and  not  by  the  oath  of 

twelve  men,  as  Littleton  here  speaketh. 

This 

hoock,  are  necessary  to  give  it  effect  and  continuance,  unless  this  also  makes 
a  part  of  the  treaty.  It  is  sufficient  if  the  acta  of  possession  are  so  often  re- 
peated as  is  necessary  to  prevent  the  loss  of  the  right  from  the  want  of  exer- 
cise of  it.  In  those  cases,  therefore,  where  the  treaty  itself,  establishing  the 
exclusive  dominion,  of  which  we  are  speaking,  is  produced,  the  continued  and 
uninterrupted  possession  mentioned  by  Bynkershoock  cannot  be  necessary. 
But  public  rights,  even  the  most  certain  and  incontestable,  depend  often  on  no 
other  foundations  than  presumption  and  usage.  The  boundaries  of  territories 
by  land  frequently  depend  on  no  other  title.  Then,  if  Bynkershoock  be  right 
in  his  position,  that  the  sea  is  susceptible  of  dominion,  should  not  mere  pre- 
scription and  usage  in  this,  as  in  any  other  case,  be  sufficient  to  constitute  a 
right  ?  Upon  what  ground  are  the  continued  and  uninterrupted  acts  of  pos- 
session mentioned  by  Bynkershoock,  required  to  constitute  a  title  in  this, 
more  than  in  any  other  case  of  public  concern  ? — If  this  be  thought  a  satis- 
factory answer  to  the  objection  made  by  Bynkershoock,  the  remaining  differ- 
ence between  him  and  Mr.  Selden,  respecting  the  right  of  the  British  monarch 
to  this  splendid  and  important  royalty,  will  be  inconsiderable. — It  is  to  be 
added  that  Mr.  Selden's  treatise  was  thought  so  important  to  the  cause,  in 
support  of  which  it  was  written,  that  a  copy  of  it  was  directed  to  be  deposited 
in  the  admiralty.  Those  who  wish  to  procure  it  in  an  English  translation, 
should  prefer  the  translation  published  in  1633,  by  a  person  under  the  initials 
of  J.  H.,  to  that  of  Marchemont  Needham.  On  this  subject,  (with  the  ex- 
ception of  Sir  Philip  Medows)  subsequent  writers  have  done  little  more  than 
copy  from  Selden.  The  subject,  however,  is  far  from  being  exhausted.  The 
system  adopted  by  Sir  Philip  Medows,  in  his  Observations  concerniriff  the  Do- 
minion and  Sovereignty//  of  the  Seas,  printed  in  1689,  is  more  moderate  than 
Mr.  Selden's. — He  calls  in  question,  at  least  indirectly,  a  material  part  of 
Mr.  Selden's  positions,  and  places  the  right  of  the  kings  of  England  to  the 
dominion  of  the  sea  upon  a  much  narrower  ground.  He  confines  it  to  a  right 
of  excluding  all  foreign  ships  of  war  from  passing  upon  any  of  the  seas  of 
England,  without  special  license  for  that  purpose  first  obtained ; — in  the  sole 
marine  jurisdiction  within  those  seas  ;  and  in  an  appropriate  fishery.  He 
denies  that  the  salutation  at  sea,  by  the  flag  and  top-sail,  has  any  relation  to 
the  dominion  of  the  sea ;  and  he  asserts  that  it  was  never  covenanted  in  any 
of  the  public  treaties,  except  those  with  the  United  Netherlands,  and  never 
in  any  of  these,  till  the  year  1654  ;  he  contends  it  is  not  a  recognition  of 
sovereignty,  but  at  most  an  acknowledgment  of  pre-eminence.  His  treatise  is 
deservedly  held  in  great  estimation.  The  late  sir  Thomas  Parker,  chief  baron 
of  his  majesty's  exchequer,  in  a  manuscript  note  in  his  hand-writing,  thus  ex- 
presses himself  respecting  it :  "  This  is  a  most  curious  and  excellent  treatise  ; 
<<  and  though  Mr.  Selden's  Mare  Clausum  is  a  learned  and  ingenious  work, 
"and  will  be  ever  popular  with  Englishmen,  yet  sir  Phillip  Medows's  rules,  for 
"  ascertaining  the  limits  of  the  sea,  seem  to  be  founded  on  more  solid  and  pru- 
'*  dential  reasons,  than  Mr.  Selden  has  offered,  in  his  book.  Thomas  Parker, 
''  14  Sept.  1744." 

With  respect  to  THE  KING' S  RIGHT  OF  PR  OPER  TY  OR  0  WNER. 
SHIP,  it  is  so  fully  discussed  by  lord  Hale,  in  his  excellent  treatises  de  Jure 
Maris,  and  de  Portubus  Maris,  published  by  Mr.  Hargrave,  that  little  more  is  ne- 
cessary 


L.  3.  C.  7.  Sect.  440.      Of  Continuall  Claime.        [261.  a. 

This  rule  here  rehearsed  by  Littleton,  is  worthy  of  explication.  (Doc-  I'la.  209.) 
If  an  alien  (for  example  borne  in  France)  bring  a  reall  action, 
and  the  tenant  plead  that  the  demandant  is  an  alien  borne  under 
the  obedience  of  the  French  king,  and  out  of  the  legiance  of  the 

king 

cessary  in  this  place,  than  to  state  a  few  of  the  leading  positions  of  that  distingish. 
ed  writer. — It  may,  however,  be  useful  to  premise,  that  where,  in  inquiries  of 
this  kind,  it  is  said,  that  a  person  is  entitled  to  the  right  or  property  in  ques- 
tion, hy  common  rigid,  but  that  it  may  belong  to  another,  it  is  intended  to  say 
that  the  right  or  property  in  question  is  by  the  common   law  annexed  to  the 
particular  capacity  of  the  party,  or  to  some  property  of  which  he  is  owner ; 
yet  that  it  is  not  so  inseparably  or  inalienably  annexed  to  this  capacity  or  owner- 
ship, but  that  the  party  may  transfer  it  to  another.     So  that  in  all  these  cases 
the  presumption  is  in  favour  of  him,  to  whom  the  right  or  property  is  said  to 
belong  by  common  right;    yet  this  does  not  exclude  the  possibility  of  its 
belonging  to  another.     To  another,  therefore,  it  may  belong;  but,  if  he  claims 
it,  he°must  prove  his  title  to  it.     On  the   other  hand,  the  party  to  whom  it 
belongs  of  common  right  is  under  no  obligation  of  showing  his  title  to  it ;    to 
him,  in  the  intendment  of  the  law,  it  belongs,  till  there  is  a  proof  of  the  con- 
trary.    To  exemplify  this  doctrine,  the   lord  of  a  manor  is  lord  of  the  soil  of 
the  manor  of  common  right;    that  is,  if  it  be  admitted  or  proved  that  he  is 
lord  of  the  manor,  his  right  .to  the  soil  so  far  necessarily  follows,  that  it  is  not 
incumbent  on  him  to  produce  any  proof  of  it.     He  may,  therefore,  of  common 
right,  dig  for  gravel,  unless  it  is  to  the  prejudice  of  his  tenants.     But  this 
right  is  not  inseparable  or  inalienable  from  the  seigniory.     The  lord  may  grant 
it  to  the  tenants ;  to  the  tenants,  therefore,  it  may  belong.     But  if  they  claim 
it,  it  is  incumbent  on  them  to  prove  their  title  to  it.     There  are  two  ways  oi 
doing  this*;  one  by  showing  the  grant  from  the  lord ;  the  other  by  prescrip- 
tion ;  that  is,  by  proving  an  immemorial  usage  of  it.  which,  in  the  eye  of  the 
law,  always  pre-supposes  a  grant.     Now,  prescription  is  shown  by  producing 
repeated  and  unequivocal  instances  of   the   immemorial  usage   or  exercise  of 
the  right  contended  for.  The  tenants,  therefore,  in  the  case  we  have  mentioned, 
if  they  cannot  produce  the  original  grant,  must,  to  make  out  their  title  to  dig 
for  gravel,  produce  repeated  and  unequivocal  instances  of  their  having  done  it 
immemorially.     If  they  do  this,  they  establish  their   title.     Bat,  though  the 
lord  be  not  called  upon,  in   the  first  instance   to  prove  his  title  to  the  right  in 
question;    yet,  when  it  is  claimed  by  others,  he  may  disprove  their  claim,  by 
showing  he  has  done  acts  inconsistent  with  it.     Thus,  if  on  the  one  hand,  the 
tenants  can  prove,  by  repeated  instances,  that  they  have  exercised  the  right  m 
question  of  digging  for  gravel,  the  lord  may,  on  the  other,  show  that,  in  all 
or  a  considerable  number  of  these  instances,  the  parties  have  been  presented 
at  his  court,  or  otherwise   punished  for  the  acts  in  question ;    and  this  may 
destroy  the  effect  of  the  evidence  in  their  favour  arising  from  the  instances 
adduced  by  them.     In  the  same  manner,  the  lord  may  show  that  they  have 
dug  only  in  one  particular  spot  of  the  waste,  at  particular  times,  or  for  a 
particular  purpose ;    by  this,  he  may  circumscribe  their  right,  as  to  the  place, 
time  and  manner  of  its  enjoyment. — In  cases  of  this  nature,  it  sometimes 
happens,  that  the  party  claims  to  be  exempted  from  an  obligation  or  servitude 
to  which,  of  common  right,  he  is  subject.     To  establish  this,  he  must  either 
produce  the  release  of  the  right,  or  produce  that  kind    of  evidence  which  will 
establish  a  presumption  that  it  was  released,  though  the  instrument  by  which 
it  was  released  cannot   be   produced.     Non-user  is   one  of  the  circumstances 
most  frequently  urged  to  establish  the  presumption  of  a  release.     But  here, 
an  important  distinction  is  to  be  made,  between  those  cases,  where  non-user  is 
brought  as  a  bar  under  the  statutes  of  limitation,  and  those,  where  it  is  brought 
as  evidence  to  prove  a  release.     la  the  first  case,  it  is  an  absolute  bar  to  the 

claim. 


261.  a.]        Of  Continuall  Claime.     L.  3.  C.  7.  Sect.  440. 

20  g  3_  king  of  England  ;  shall  this  case  want  triall  because  the  matter 

Averment,  34.  alleagecl  is  out  of  the  realme  ?  then  by  the  fiction  of  this  plea,  no 
27  Ass.  24.  demandant  shall  recover;  therefore  in  this  case  the  demandant 

15  E  4  15  shall  reply,  that  he  was  borne  at  such  a  place  in  England,  within 

7  H.'e.'lS.'  1  R.  .S.  4.  6  H.  7.  6.  7  II.  7.  8.  F.  N.  B.  196.  29  Ass.  11.  13  E.  1. 
Mord.  47.  12  H.  3.  ibid.  55.  Lib.  7.  fol.  26,  27.  Calvin's  case.  Li.  6.  f.  47. 
Dowdale's  case. 

the 

claim,  and  there,  the  strongest  evidence  of  the  previous  existence  of  the  right 
is  of  no  avail ;  in  the  second,  it  is  only  argumentative  evidence  of  the  supposed 
release  of  the  right,  and  like  all  other  evidence,  may  be  repelled,  by  stronger 
evidence  to  the  contrary. — It  should  also  be  observed  that,  though  it  is  said, 
that  prescription  pre-supposes  a  grant,  and  non-user  pre-supposes  a  release,  it 
is  not,  that,  strictly  speaking,  the  courts  always  in  these  cases  really  believe 
that,  such  a  grant,  or  such  a  release,  are  actually  executed;  but  because,  for  the 
sake  of  the  general  principle  of  quieting  possessions,  they  will  not  permit  them 
to  be  disturbed  by  claims  long  dormant,  and  therefore  determine  in  the  same 
manner  as  they  would  determine,  if  the  very  instrument  of  grant  or  release 
were  produced.  The  principles  of  which  we  have  here  endeavoured  to  give  an 
outline,  are  to  be  found  in  the  cases  of  the  mayor  of  Kingston-upon-HuU  v. 
Horner,  Cowp.  102.  and  Eldridge  v.  Knott,  ib.  214. — Lord  Mansfield's  argu- 
luents  in  delivering  the  judgment  of  the  court  in  these  cases,  as  they  are 
reported  by  Mr.  Cowper,  afi"ord  a  striking  display  of  the  comprehensive  and 
luminous  understanding,  the  beautiful  arrangement,  and  the  familiar,  but  ele- 
gant enunciation  of  the  most  refined  and  complex  doctrines  of  the  law,  for 
which  he  was  so  deservedly  eminent. 

This  being  premised; — ivith  respect  to  the  propriety  or  oicncrsJii'p  of  the  sea, 
and  its  soil,  may  be  considered  under  these  three  distinct  divisions,  the  high 
seas,  the  shore  or  the  land  between  high-water  mark  and  low-water  mark,  and 
the  soil  and  franchise  of  ports. — 

As  to  the  high  seas  and  their  soil;  the  right  of  fishing  in  the  sea  and  its 
creeks  and  arms,  is  originally  lodged  in  the  crown,  as  the  right  of  depasturing 
is  originally  lodged  in  the  owner  of  the  waste  whereof  he  is  lord ;  the  king  has 
therefore,  of  common  right,  the  primary  right  of  fishing; — yet  the  people  of 
England  have  also,  by  common  right,  a  liberty  of  fishing  in  the  sea  and  its 
creeks  or  arms,  as  a  public  common  of  piscary.  Yet,  in  some  cases,  the  king 
may  enjoy  a  propriety  exclusive  of  their  common  of  piscary.  He  also  may 
grant  it  to  a  subject,  and  consequently  a  subject  may  be  entitled  to  it  by  pre- 
Bcriptiou.     (Lord  Hale,  de  Jure  Maris,  page  11.) 

As  to  the  soil  between  high-water  mark  and  low-water  mark,  at  ordinary  tides, 
this  oi  common  right  belongs  to  the  king. — It  ?»fl^  however  belong  to  a  subject, 
by  grant  or  prescription.  Sometimes  it  is  parcel  of  the  adjacent  manor  :  Some- 
times of  the  Jldjacent  vill  or  parish  :  sometimes  it  belongs  to  a  subject  in  gross: 
Still  however  ikt  belongs  of  common  right  to  the  king  :  It  is  therefore  incumbent 
ou  the  subject  to  prove  his  right.  This  may  be  done  by  producing  the  grant. 
(Hale,  ib.  ch.  4,  5,  6.  Sir  Henry  Constable's  case,  5  Rep.  107.)  But  as  it  is 
part  of  the  possession  of  the  crown,  jure  corona),  it  does  not  pass  by  general 
words;  and  therefore  to  establish  a  right  to  it  under  the  grant,  it  must  contain 
such  words,  as  either  expressly  or  by  necessary  implication  convey  the  soil. 
— If  the  grant  cannot  be  produced,  it  can  no  otherwise  be  proved,  than  by  pre- 
scription, that  is,  as  we  observed  before,  by  repeated  unequivocal  and  imme- 
morial usage. — 

As  to  ports,  there  is  a  very  material  and  important  distinction  between  the 
franchise  of  a  port  and  the  property  of  its  soil. — As  to  the  franchise ;  by  the 
common  law,  a  port  is  the  only  place  where  a  subject  is  permitted  to  unlade 
customable  goods. — This  privilege  constitutes  what  is  called  the  franchise  of 

a  port. 


L.  3.  C.  7.  S.  440.  Of  Continuall  Claime.   [261,  a.  2G1.  b.  | 

the  king's  leigeance,  and  hereupon  a  jury  of  12  shall  be  charged, 
and  if  they  have  sufficient  evidence  that  hce  was  borne  in  France, 
or  in  any  other  place  out  of  the  rcalnie,  then  shall  they  finde  that 
hee  was  borne  out  of  thcking's  alleagcancc ;  and  if  they  have 
sufficient  evidence  that  he  was  borne  in  England,  or  Ire- 
land, or  Jernspy,  or  Jersey,  or  elsewhere  within  the 
[S61.1  king's  ^S^  obedience,  they  shall  find  that  he  was  born 
b.  J  within  tbe  king's  leigeance.  And  this  hath  ever  beene 
the  pleading  and  manner  of  trial!  in  that  case.  And  so 
it  is  in  the  case  that  Littleton  here  putteth,  if  a  man,  in  avoydance 
of  a  fine  or  a  discent,  alleage  that  he  was  out  of  this  rcalme  in 
Spaine,  at  the  time  of  levying  of  the  fine,  and  at  the  time  of  the 
disseisin  and  discent,  the  adverse  party  may  alleage  that  he  was 
at  such  a  place  in  England,  &c.  whereupon  issue  shall  be  taken, 
and  then  in  evidence  he  may  prove  that  he  was  out  of  the 
realme,  &c.  which,  upon  sufficient  evidence,  the  jury  ought  to 
finde.  And  in  both  these  cases  and  the  like,  in  a  special  verdict 
the  jury  may  finde  that  he  was  borne  beyond  sea,  or  was  beyond 
sea  at  that  time,  &c. 

The 

a  port. — To  create  the  franchise  of  a  port  is  part  of  the  royal  prerogative. 
But  this  does  not  in  anywise  affect  the  propriety  of  the  soil.  It  may  be  con- 
sidered as  a  striking  instance  of  the  respect  of  the  law  of  England  for  private 
property,  that  though  it  intrusts  the  king  with  the  prerogative  of  originating 
ports,  and  though  the  use  of  the  adjacent  soil  is  essentially  necessary  to  the 
existence  of  a  port,  the  law  does  not  permit  the  king  to  take  any  part  of  the 
soil  from  the  owner ;  so  that,  if  the  soil  is  not  the  property  of  the  king,  it  is 
necessary  to  secure  the  property  of  the  shore  beforehand,  for  the  purposes  of 
the  port.  The  franchise  belongs  to  the  king  of  common  right,  but  by  charter 
or  prescription,  it  may  be,  and  frequently  is,  the  right  of  the  subject. — The 
soil  generally  belongs  to  the  owner  of  the  port ;  but  it  is  going  too  far  to  say, 
that  it  belongs  to  him  of  common  right. — The  mere  grant  of  a  port  would 
not  in  a  modern  charter  pass  the  soil,  but  perhaps  it  would  be  sufficient  in  an 
ancient  charter,  to  pass  it,  if  no  evidence  to  the  contrary  could  be  shown, 
and  it  certainly  would  be  considered  as  sufficient  to  pass  it  in  an  ancient 
charter,  if  accompanied  with  the  additional  circumstance  of  immemorial  usage. 
— Having  thus  shown  in  whom  the  soil  of  the  shore  and  of  ports  belongs  by 
common  right,  it  remains  to  state  succinctly  the  nature  of  the  evidence  by 
which  the  right  to  it  may  be  proved  to  exist  in  another.  It  may  be  done 
by  showing  that  he,  and  those  under  whom  he  claims,  have  imraemorially, 
frequently,  and  without  restriction  to  any  part  of  the  soil,  dug  gravel,  fetched 
away  sea  weed  or  sand,  or  embanked  against  the  sea.  If  it  be  claimed  to 
be  part  of  a  manor,  the  right  of  commonage  for  the  cattle  of  the  lord  and 
the  tenants,  the  prosecution  and  punishment  of  purprestures  in  the  court  of 
a  manor,  its  being  included  in  the  perambulations,  and  every  other  act  by 
which  the  right  to  the  soil  of  inland  property  is  established,  may  be  given  in 
evidence  in  support  of  it.  The  right  to  wreck  of  the  sea  or  royal  fish  by 
prescription,  infra  manerium,  is  a  strong  presumption  for  the  shore's  being 
parcel  of  the  manor;  lord  Hale's  expression  is  very  strong — "Perchance," 
says  his  lordship,  "  the  shore  is  parcel  almost  of  all  such  manors  as  by  pre- 
"scription  have  royal  fish  or  wrecks  of  the  sea  within  their  manor."  lb.  27. 
— But  it  should  be  observed,  that,  though  wreck  is  frequently  parcel  of  a 
manor,  it  is  a  royal  franchise.  Like  other  royal  franchises,  it  belongs  of 
common  right  to  the  crown.  But  by  grant  of  prescription  it  may,  and  in  fact 
frequently  does,  belong  to  a  subject,  sometimes  in  gross,  but  oftener  as  parcel 
of  his  manor,  parish,  or  vill  adjacent  to  the  sea. — [Note  205.] 


261.  b.]     Of  Continuall  Claime.     L.  3.  C.  7.  Sect.  440. 

(7  Rep.  26,  2r.         The  statute  of  25  E.  3,  deprodltionihus,  doth  declare,  that  it  is 
Calv.  case.)         treason  by  the  common  law  to  adhere  to  the  enemies  of  the  king 
within  the  realme,  or  without,  if  hec  bee  thereof  proveablement 
attaint  of  overt  fact,  and  that  he  shall  forfeit  all  his  lands,  &c.  A 
man  must  not  imagine  that  seeing  by  the  common  law  declared 
by  authority  of  parliament,  that  adhering  to  the  king's  enemies 
without  the  realme,  is  high  treason,  and  that  the  delinquent  may 
be  attainted  thereof,  &c.  that  this  should  want  triall,  for  then  the 
judgement  of  the  common  law,  and  declaration  of  the  parliament, 
should  be  illusory,  which  no  well  advised  man  will  thinke  in  a 
matter  of  so  great  consequence.     But  certaine  it  is,  that  for  ne- 
cessitie  sake,  the  adherencie  without  the  realme  must  bo  alleaged 
511  2  Triall  54  ^^  same  place  within  England.    And  if  upon  evidence  they  shall 
finde  any  adherencie  out  of  the  realme,  they  shall  finde  the  delin- 
quent guilty.     But  most  commonly  they  indited  him  (if  he  had 
lands)  in  some  county  where  his  lands  did  lie,  that  were  to  be  for- 
feited ;  and  this,  as  appeareth  in  our  bookes,  was  the  common  use. 
[«]  35  H.  8.         ^nd  so  it  is  declared  by  the  statute  [*]  of  35  H.  8,  and  that  it 
cap.  2.  shall  be  tried  by  twelve  men  of  the  countie,  where  the  king's 

Staiinford's         bench  shall  sit,  and  be  determined   before  the  justices  of  that 
(Cro.  Car.  332.)  bench,  or  else  before  such  commissioners,  and  in  such  shire  of  the 
realme,  as  shall  be  assigned  by  the  king's  majestie's  commission, 
and  this  statute  for  this  point  remaines  in  force  at  this  day,  and 
Fal  33  Eliz  ^'^  '^^  ^^^  resolved  [a]  by  all  the  judges  in  my  time,  viz.  in  33 

case  Orurke,  EUz.  in  the  case  of  Orurcke.  And  anno  [6]  34  Eliz.  in  sir  John 
[i]  34  Eliz.  Perot's  case  done  in  Ireland,  for  that  is  out  of  the  realme  of  Eng- 
Perote.^^"^"^''  land,  and  the  case  [c]  in  Mich.  19  &  20  EUz.  was  utterly  denied, 
[c]  Mich.  19       and  sir  Christopher  Wray  himselfe  (who  is  supposed  to  give  his 

6  20  Eliz.  opinion  in  that  case)  protested  that  he  never  gave  any  such  opinion, 
?2(f  H^  6^*8  )  ^^*'  ^^^  '^"^^'^  ^'^^  contrary.  When  part  of  the  act,  especially  the 
48E.'3. 3.  "  originall  is  done  in  England,  and  part  out  of  the  realme,  that 
11  H.  7. 16.  part  that  is  to  be  performed  out  of  the  realme,  if  issue  be  taken 
1  R.  3.  4.            thereupon,  shall  be  tried  here  by  12  men  ;  and  those  twelve  men 

shall  come  out  of  the  place  where  the  writ  is  brought.  For  ex- 
ample, (which  ever  doth  illustrate)  it  was  covenanted  by  inden- 
ture, by  charter  party,  that  a  ship  should  sayle  from  Blachnei/ 
haven  in  Norfolke,  to  Muttrel  in  Spaine,  and  there  remains  by 
certaine  dayes. 
(1  Roll.  532.  In  an  action  of  covenant  brought  upon  this  charter  party,  the 

138^  140  141°^*    i'i'^<^ot"i'6  was  alleaged  to  be  made  at  Thetford  in  the  county  of 

7  Rep.  2.  a.  *  Norfolke,  and  upon  pleading,  the  issue  was  joyned,  whether  the 
Sid.  367.  said  ship  remained  at  Muttrel  in  Spaine  by  the  said  certaine 
Lut.  700.  710.  dayes.  And  it  was  adjudged  that  this  issue  should  be  tried  at 
Paseh.  28  Eliz.  Thetford,  where  the  action  was  brought,  because  there  the  con- 
in  action  de  tract  tooke  his  originall  by  making  of  his  charter  partie,  and  so 
covenant  inter     jj^th  it  beene  often  adjudged  in  such  like  case. 

stantimj  pi.  &^'  ^^  obligation  made  beyond  the  seas  maybe  sued  here  in  Eng- 
Hughgyn  de-  land,  in  what  place  the  plaintiff  will.  What  then  if  it  beare  date 
fendant  in  the  at  Boiirdeaux  in  France,  where  shall  it  be  sued  ?  And  answer  is 
L^l^f.  47?  '  inade,  that  it  may  be  alleaged  to  be  made  in  quodam  loco  vocat' 
Dowdale's  case.  Burdeaux  in  France,  in  Islington  in  the  county  oi Middlesex,  and 
Yid.  32  H.  6.  25.  there  it  shall  be  tried,  for  whether  there  be  such  a  place  in 
11 H  l'  1^6  Islington  or  no,  is  not  traversable  in  that  case.     These  points 

2  E.  2.  Obli-  are  necessary  to  be  knowne  in  respect  of  the  variety  of  opinions 
gation,  15.  jn  our  bookes.     And  of  these  thus  much  shall  suffice,  and  now 

kifi  ""228  '  ^^  Littleton  worthy  to  be  heard, 

iiob.  iL)  "  By 


L.  3.  C.  7.  S.441.  Of  Continiiall  Claime.   [261.  b.  262.  a. 

'^  Bi/ tinderstOMding  of  the  law."      Vide,  for  intendement  of  Intendement 
law,  Sect.  99,  100.  110.  298.  377.  393.  406.  367.  462,  463,  of  law. 

&C.  439.  Vide  Sect.  269. 

"  This  shall  he  inconvenient."  Here  also,  as  hath  beene 
often  said,  appeareth,  that  argumentum  ah  inconvenienti,  is  strong 
in  law  (A). 

"  Otherwise  it  shoidd  he  if  the  disseisee  were  within  the  realme 
at  the  time  of  the  disseisin,  &c."  So  as  if  a  man  be  disseised  before 
he  goeth  over  sea,  or  commeth  into  the  realme  againe  before  the 
discent,  the  discent  shall  take  away  his  entrie. 


[^f-] 


■ssr  Sect.  441. 


ANOTHER  matter  they  alleage  for  a  proof e  that  before  the  statute 
of  king  Edward  the  Third,  made  the  34  yeare  of  his  reigne  (devant 
le  statute  fait  en  le  temps  de  roy  E.  3.  an  *  34.  cap.  16,  de  son  raigne), 
hy  which  statute  nonclaim  is  ousted,  ^c.  the  law  was  such,  that  if  a  fine 
were  levied  of  certaine  lands  or  tenements,  if  any  that  ivas  a  stranger  to 
the  fine  had  right  to  have  and  to  recover  the  same  lands  or  tenements,  if 
he  came  not  and  made  his  claime  thereof  within  a  yeare  and  a  day  next 
after  the  fine  levied,  he  shall  he  barred  for  ever,  quia  dicebatur  quod  finis 
finem  litibus  imponebat.  (B)  And  that  laiv  was  such,  it  is  proved  by  the 
statute  of  West,  the  2.  De  donis  conditionalibus,  where  it  is  spoken  if 
the  fine  be  levied  of  tenements  given  in  the  taile,  ^e.  quod  finis  ipso 
jure  sit  nullus,  nee  habeant  hreredes,  aut  illi  ad  quos  spectat  reversio 
(licet  plense  statis  fuerint  in  Anglia,  et  extra  prisonam)  necessitat'  ap- 
ponere  clameum  suum,  f  &c.     So  it  is  proved  that  if  a  stranger  that 

hath 

*  34.  cap.  16,  not  in  L.  and  M.  or         f  &c.  not  in  L.  and  M.  or  Roh. 
Roh. 

(A)  See  ante  66.  a.  and  note  1   there. 

(B)  Upon  thie  section  of  Littleton,  Mr.  Ritso  observer,  that,  "it  is  plainly  contradictory 
and  unintelligible,  according  to  the  present  reading."  And  after  citing  the  same  section 
as  far  as  the  words,  "So  it  ie  proved,  &e."  Mr.  Ritso  argues  thus:  "  J^^ow,  in  the  first  place, 
"  it  is  not  intended  to  prove  that  before  the  statute  34  U.  III.  the  stranger  to  a  fine,  icho 
"  made  not  his  claim  within  a  yrar  and  a  day,  was  for  ever  barred,  d'c. ;  but,  on  the  con- 
"  trury,  that  if  such  stranger  teas  out  of  the  realm,  at  the  time  of  the  fine  levied,  <£-c.  he 
"  was  not  barred,  though  he  made  not  his  claim,  &c.  And,  secondly,  as  the  law  is  here 
"  stated,  in  the  preceding  part  of  the  section,  it  is  not  proved  by  the  words  of  the  statute 
"  de  donis,  &c.  but  the  very  reverse  is  proved.  In  order,  then,  to  restore  this  section,  as 
"  we  may  presume  it  to  have  been  originally  written  by  Littleton,  I  shotild  read  as  follows  : 
"  'Another  matter  they  allege  for  proof,  [of  the  allegation  contained  in  sect.  440,  that  a  dis- 
"  seisin  and  descent  shall  not  bind  the  disseisee  who  is  out  of  the  realm  at  the  time,  (be.)  viz. 
''  that  before  the  statute  of  King  Edward  III.  made  the  34</i  year  of  his  reign,  (by  ichich  sta- 
"  tute  non-claim  is  ousted,  <fcc.)  the  law  was  such,  that  if  any  that  was  a  stranger  to  the  fine, 
"  had  right  to  have  and  recover  the  same  lands  and  tenements,  if  he  came  not  and  made  his 
"  claim  thereof  within  a  year  and  a  day  next  after  the  fine  levied,  he  was  for  ever  barred  ;' 
"  quia  dicebatur  quftd  finis  finem  litibus  imponebat.  'But  if  he  were  out  of  the  realm  at  the 
"  time  of  the  fine  levied,  d'c.  or  in  prison,  or  not  of  full  age,  he  ivas  not  barred,  although  he 
"  made  not  his  claim,  &c.  And  that  the  law  teas  such  is  proved  by  the  statute  of  West.  2.  do 
"  donis,  .fee'  "—See  Mr.  Ritso's  Mr.  p.  108,  109. 

The  effect  of  Time,  in  barring  legal  remedies  and  conferring  titles,  ia  excellently  shown 
in  the  argument  of  the  Master  of  the  Rolls  in  Reckford  v.  Wade,  17  Ves.  jun,  87.  not 
only  in  respect  to  the  point  then  under  the  consideration  of  the  court,  but  also  in  respect  to 
the  general  operation  of  length  of  possession,  as  a  bar  under  the  statute  of  limitation,  and  as 
nfTfirding  a  2)resu»ipti<iii  in  favour  of  right.  On  these  points,  the  cases  of  Eldridge  v.  Knott, 
Viwp.  214.  and  the  Mayor  of  Kingston  ujx'u  Hull  v.  Horner,  ib.  102.  may  also  be  usefully 
consnUed. 


262.  a.  262.  b.]  Of  Continuall  Claime.  L.  3.  C.  7.  S.  441. 

Itath  right  unto  the  tememe^its,  if  he  tvere  out  of  the  realme  at  the  time  of 
the  fine  levied,  ^'c.  shall  have  no  dammage^  though  that  hee  made  7iot  his 
claim,  ^c.  though  that  such  fine  was  matter  of  record  :  by  greater  reason 
it  seemeth  unto  them,  that  a  disseisin  and  discent  that  is  matter  in  deed, 
shall  not  so  grieve  him  that  was  disseised  whe7i  he  was  out  of  the  realme 
at  the  time  of  that  disseisin,  and  also  at  the  time  that  the  disseisor  died 
seised,  <^c.  hut  that  he  may  ivell  enter,  notwithstanding  such  discent  |. 

HERE  it  appeareth,  what  the  common  law  was  before  the 
said  statute,  for  non-clayme  upon  a  fine  levied.     But  now 

4  H.^V.  cap.  24.  since  Littleton  wrote,  by  the  statute  of  4  H.  7,  five  yeares  after 

See  as  well  this  proclamations  made  upon  the  fine  are  given  to  him  that  right  hath 

statute  as  the  ^^  make  his  claime,  or  pursue  his  action,  where  the  common  law 

cap.  36.  well    '  g-'^-^e  him  but  a  yeare  and  a  day.     But  this  statute  of  4  H.  7. 

expounded  in  extends  only  to  fines,  and  not  to  non-claime  upon  a  judgement  in 

my  Reports.  ^  writ  of  right,  and  therefore  the  said  statute  of  34  E.  3.  here 

85^&c'.  Sse^^del  cited  by  Littleton,  which  ousteth  non-claime  only  to  fines  levied, 

fines  per  totum.  extendeth  not  to  a  judgement  in  a  writ  of  right  at  this  day,  and 

lib.  l.fol.  96,  97,  therefore  the  common  law  in  that  case  remaineth  to  this  day,  viz. 

case!'iib!'^2!  fol.  *^^t  claime  must  bee  made  within  a  yeare  and  a  day  after  judge- 

93.  Bingham's"  ment  (1).     Also  if  a  fine  be  levied  without  proclamations,  or 

case.  lib.  8.  fol,  without  SO  many  as  the  law  requireth,  then  the  statute  of  non- 

JJs^.  ^Lib!^"9.'^''  claime  doth  extend  to  such  a  fine. 

iol.  139,  140,  141.  Beaumond's  case.  Lib.  10.  fol.  49.  b.  Lampot's  case,  and  99.  a. 
Lib.  9.  fol.  105,  106.  Margaret  Podger's  case.  Lib.  5.  fol.  124.  Saffyn's  case.  Lib.  10. 
96,  97.  Seymour's  case.  Lib.  8.  fol.  72.  Grosleye's  case.  Lib.  11.  fol.  69.  71.  78.  _  PI. 
Com.  in  Smith's  and  Staph  case,  and  in  Stowe's  case,  and  Howel's  case,  and  Glanvil.  li. 
13.  cap.  11.  Bract.  435.  Fleta,  lib.  6.  cap.  53.  Brit.  216.  (4  H.  7.  c.  24.  32  H.  8.  c. 
36.    2  Cro.  101.  226.) 

[a]  GlanvU.  "Bicebatur  finis,  quiafinem  litihus  imponehat  (2)."   Here  you 

lib.  8.  cap.  3.  may  observe  the  etymologie  of  a  fine.  And  herewith  agreeth  [a] 
fo\^%l^^' ^'  antiquity:  Fi7u's  ided  dicitur  finalis  concordia,  q\da  imponit 
Fleta'^lib.  6.  finem  litihus.  And  after  the  example  [i]  oi  Littleton,  it  is  good 
cap.  52,  53.  _  to  search  out  the  etymologie  or  right  derivation  of  words;  for 
[6]  Etymologies,  /^^^^^.^j^;.,  ferminis  igiwratur  et  ars,  as  hath  beene  often  observed 
Vid.  Sect.  74.  in  other  places.  And  the  civilians  call  this  judiciall  concord 
174. 194.  441.  transactionem  judicialem  de  re  immohili. 
520.  592. 

^^^^ Licet ft,critplcnce  cvtatis  in  Anglid  et  extrapri-  r363.~j 
Stat,  de  anno  sonam."  In  this  act  of  13  E.  1.  De  donis  conditionali-  L  b.  J 
13  E.  1.  lus  is  one  omitted,  who  is  added  in  the  statute  De  modo 

levandi 

I  &c.  added  in  L.  and  M.  and  Boh. 


(1)  If  a  disseisor  at  the  common  law,  before  the  statute  of  non-claim, 
had  levied  a  fine  or  suffered  judgment  in  a  writ  of  right,  until  execution 
sued  they  were  not  bars,  for  the  year  shall  be  accounted  after  the  transmuta- 
tion of  the  possession  by  execution  of  the  fine  or  recovery.  1  Rep.  97. — 
[Note  206.] 

(2)  Every  part  of  the  law  relating  to  fines  and  common  recoveries  has  been 
stated  and  explained  by  Mr.  Cruise,  in  his  Essays  upon  those  subjects,  in  a 
manner  that  equally  recommends  them  to  the  student,  and  the  most  learned 


and  experienced  practitioners.  Besides  the  obligations  which  the  Editor  has 
to  him  upon  this  account  in  common  with  the  rest  of  the  profession,  he 
acknowledges  with  e(      '    "  ,...-.     .i  ■  -    .-.-i. 

has  to  him  for  the  a 
work.— [Note  207.] 


to  mm  upon  tnis  accouni  in  commou  wiiu  lue  leat  ui  i."^  ^..^^v.^^,.^^,  ^^ 
acknowledges  with  equal  pleasure  and  gratitude  the  particular  obligations  he 
has  to  him  for  the  assistance  he  has  derived  from  them  in  the  course  of  this 


L.  3.  C.  7.  S.  442.    Of  Continnall  Claime.  [262.  b.  263.  a 

levandi  fines,  viz.  et  sanse  memorise,     [c]  But  a  fern-covert  had  [e]  pi.  Com, 
no  privilege  of  non-claime  at  the  common  law,  as  some  have  Stowel's  case, 
said,  because  she  had  a  husband  that  might  make  claime  for  ^^'        ,., 
her.     But  yet  Bracton   saith,   Item  excusatur  uxor  qnse  sub  fo.  436. ' 
potestate   viri  sujojjosita,   quod   clameum    non    apposucrit   licet  Brit.  fo.  216.  b. 
mittere  possit,  and  citcth  a  judgement  in  the  point,  Trin.  4.  H. 
3.  in  Cicsin's  case.     But  Fleta  saith,  Exmsatur  si  fuerit  uxor  Fleta,  lib.  6. 
cdiciijus,  si  fuerit  per  virum  impedita,  quod  non  potuit  apponere  ca.  53(A). 
clameum.     Also  they  in  reversion  or  remainder  expectant  upon 
any  estate  of  freehold  were  barred  by  the  common  law;  and  yet 
they  could  make  no  claime,  because,  as   hath  beene  said,  it  be- 
longed to  the  particular  tenant,  and  not  to  them,  because  their 
entry  was  not  lawfull;  which  was  one  of  the  principall  causes  of 
making  of  the  said  statute  of  34  E.Z.  which  ousted  non-claime. 
But  these  cases  of  coverture,  and  of  them  in  reversion  and  re-  (4  h.  7.  c.  24. 
mainder,  are  now  without  question  holpen,  and  just  provision  32  H.  8.  c  36. 
made  for  the  saving  of  their  rights  and  titles  by  the  said  statute  ^  ^^^^'  ^^^'^ 
of  4  H.  7.  as  by  the  said  act  appeareth. 

(A)   This  reference  to  Fleta  is  incorrect.     See  Fleta,  lib.  6.  ca.  54. 

Sect.  442. 


ALSO,  inquire  if  a  man  he  disseised,  and  he  arraigne  an  assise 
against  the  disseisor,  and  the  recognitors  of  the  assise  chante{\)for 
the  2:)laintife  (et  les  recognitors  do  le  assise  f  chaunta  per  le  plaintife), 
and  the  justices  of  assise  will  bee  advised  of  their  judgements  untill  the 
next  assise,  ^c.  and  in  the  meane  season  (et  en  %  le  dementiers)  tlie  dis- 
seisor dieth  seised,  ^c.  yet  the  said  suit  of  the  assise  shall  be  ||  tahen  in 
law  for  the  disseisee  a  continuall  claime,  insomuch  that  no  default  tvas 
in  him,  §  ^c. 

"  A  RRAIGNE  an  assise."  To  arraigne  the  assise  is  to  cause 
the  tenant  to  be  called  to  make  the  plaint,  and  to  set  the 
cause  in  such  order  as  the  tenant  may  bee  enforced  to  answer 
thereunto;  and  is  derived  of  the  French  word  arraigner,  which 
signifieth  to  order  or  set  in  right  place.  An  arraignment  is  some- 
time called  an  astitution,  of  the  verbe  astituo,  compounded  of  ad 
and  statuo,  that  is,  to  place  or  set  in  order  one  by  another.  In 
the  same  sense  that  Littleton  here  useth  it,  it  is  used 

t 963.1  when  an  appeale  is  Jg^"' arraigned,  both  which  are 
a.  J  arraigned  in  French,  but  entred  in  Latin.  And  it  is  (lO  Rep.  130.) 
to  be  observed,  that  Littleton  saith  here  arraigne  an 
assise,  and  saith  not  that  the  tenant  is  arraigned;  and  so  of  the 
the  appeale;  for  these  are  the  suits  of  the  subject,  and  no  man 
is  said  to  be  arraigned,  but  merely  at  the  suit  of  the  king,  upon 
an  enditement  found  against  him,  or  other  record  wherewith  he 
is  charged.    And  there  the  arraignment  of  the  prisoner  is  to  take  2  &  3  E.  6. 

c.  24,  towards 
tbo  end.     Staundf.  PI.  Cor.  105.  C.     3  II.  7.  ca.  1. 

order 

■f  chaunta — chaunteront,  in  L.  and         \\  taken  not  in  L.  and  M.  or  Roh. 
M.  and  chaunteront  in  Roh.  §  t&c.  not  in  L.  and  M.  or  lloh. 

I  le  not  in  L.  and  M. 

(1)  i.e.  Find,  or  give  their  verdict. 
Vol.  II.— 22 


263.  a.]  Of  Continuall  Claime.  L.  3.  C.  7.  Sect.  442. 

order  that  he  appeare,  and  for  the  certainty  of  the  person  to  hold 
up  his  hand,  and  to  plead  a  sufficient  plea  to  the  enditement  or 
other  record,  whereupon  they  whicl^  follow  for  the  king  may 
orderly  proceed. 

Via.  Sect.  514.  ''Jiistices  of  assise."     Justices  of  assise  are  assigned  and  con- 

233,234.  Magna  stitutcd  by  the  king  of  the  judges  and  sages  of  the  law,  and  are 
Charta,  30.  ^  called  justices  of  assise,  for  that  the  writs  of  assise  of  novel  clis- 
39!  'stat."'de  *  seisin  (which  in  former  times  were  accounted  festina  remedia, 
Ebor.  ca.  3,  4.  and  very  frequent  and  common)  were  returnable  before  them  to 
Artie  Sup.  Cart.  |^g  taken  in  their  proper  counties  twice  every  yeare  at  the  least, 
4  E.  3'.  ca.  11.  whereupon  they  had  authority  to  give  judgment  and  award  seisin 
7  R.  2.  ca.  4.        and  execution  :  and  therefore  both  for  the  number  of  them  in 

27  E.  1.  do  times  past,  and  for  the  greater  authority  they  had  then  as  ius- 

finibus,  ca.  4.         ^.  ^      ■   •        •       /     1  •   1  ^     4.  ■     ■  1  i.  • 

28  E  1.  do  ^^^^^  ^^  n«S4^j/-<ws  (which  was  to  trie  issues  only,  except  in  quare 
appellatis.  impedit,  and  assises  de  darreine  ^iresentment,  in  which  cases  the 
4  E.  3.  ca.  2.  justices  of  nisi  prius  might  give  judgment)  they  were  denomi- 
3  h'  5'  ca"  7'  nated  justices  of  assises  :   and  divers  acts  of  parliament  have 

13  H.  4.  ca.  7.  given  to  them  great  authority  both  in  criminall  causes  and  corn- 
North,  mon  pleas.  These  justices  of  assise  have  also  commission  of 
<,  ^  g'  ^^'  ■-■  oier  and  terminer,  of  gaole  delivery  and  of  the  peace,  of  associa- 

14  H.  (5.  ca.  1.  tion,  and  si  nan  omnes  throughout  their  whole  circuits,  so  as  they 
21  H._6.  ea.  10.  are  armed  with  ample,  provident,  but  yet  ordinary  jurisdiction; 

33  h's°c  9"  ^°^'  ^^^  their  commissions  are  bounded  with  this  expresse  limit- 

34  &'?.o  11.  S.  ahoTi,  fact uri  quod  ad  Justitiam  pertinet  secundum  legem  et  con- 
ca.  14.  siiefudinem  Anglise.  And  in  former  time,  according  to  the 
2  &^3  E.  6.  originall  institution  and  their  commission,  both  the  justices 
\]{.  i.  ca.  7.  joined  both  in  common  pleas  and  pleas  of  the  crowne. 

2  Mar.  DLer,  99. 

3  &  4  Eliz.  Dier,  205.     (F.  N.  B.  240.  C.     4  Ins.  161.) 

"  Yet  the  said  suit  of  the  assise  shall  he  taken  in  laic,  dr.  a 
continuall  claime."     And  it  is  holden  at  this  day  that  it  shall 
amount  to  a  claime,  for  that  there  was  no  default  in   him,  as 
[d\  See  before      Littleton  saith.     [(/]  Some  have  objected,  that  if  the  bringing 
in  this  chapter,    of  an  assise  shall  amount  to  continuall  claime,  and  every  con- 
^^■'^^'  a^'"*!  ,ig     tinuall  claime  made  by  the  disseisee  vest  the  possession  and  free- 
(2  E.  3.  8.       "    hold  in  him,  therefore  if  bringing  the  assise,  &c.  should  amount 
14  E.  3. 14.)         to  a  continuall  claime,  that  then  the  writ  should  abate.     But 
(Ant.  2o3.  b.)       hereunto  it   hath  beene  answered  in   this  chapter,  that  a  con- 
tinuall claime  is  an  entry  by  construction  of  law  for  the  advan- 
tage of  the  disseisee,  but  not  for  his  disadvantage. 
24  E.  3.  25.  Ill  ^  writ  of  entry  sur  disseisin  against  one,  supposing  that  he 

9  E.  2.  Age,  141.  had  not  entred  but  by  S.  who  disseised  him,  the  tenant  said  that 
i-^  ^-  ^-  *S'.  died  seised,  and  the  land  descended  to  him,  and  prayed  his 

de^iar.  5.  ^g^j  *^^  plaintife  counterpleaded  his  age,  for  that  he  arraigned 

an  assise  against  /S'.  who  died  hanging  the  assise,  and  he  was 
ousted  of  his  age,  for  that  the  bringing  of  the  assise  amounted 
to  a  claime. 
3  E.  3.  tit.  If  tenant  in  dower  alien  in  fee  with  warranty,  and  the  heire  in 

Garrantie,  62.      the  reversion  bring  a  writ  of  entry  in  casu prociso,  &c.  and  hang- 
ing the  plea  the  tenant  dieth,  the  heire  shall  not  be  rebutted  or 
barred  by  this  warranty,  for  that  the  pmcipe  did  amount  to  a 
[*]  Flota,  lib.  6.  continuall  claime.     And  herewith  agreeth  [*]  antiquity;  Et  si 
ca.  52  (B).  _         clameum  non  ap>posuerit,  sufficit  tamen  si  ille  vel  antecessor  suus 
f^^il'e^^^'  '^'       faciat  quod  tantundcm  valeat,  ut  si placitum  moverit  tenenti  vel 
fecerit  rem  litigiosam;  quia  sicut  plus  est  facto  appcUare  quAm 

verho, 

(B)    This  re/trmco  U>  FlePa  is  incorrect.     Se«  Fl^^a,  lib.  6.  oa.  53. 


L.  3.  C.  7.  S.  443.  Of  Continuall  Clairne.  [263.  a.  263.  b. 

verlo,  if  a  phts  est  clameum  apjyonere  facto  qucim  verba  (A)  :  et  ad 

hoc  facit  de  termino  Sanctct  Trinitatis,  anno  regni  regis  H.  3. 

15.  in  com.     Hunt,  de  quddam  Guldeburgd,  cui  objectum  fuit, 

quod  clameum  non  apposuit,  et  ipsa  respondit  quod  fecit  quod 

tantundem  valet,  quia  tempore  finis  facti  implacitavit  tenentem 

per  ali'ud  breve,  &c. 

If  the  goods  of  a  villein e  (befoi'e  any  seisure  made  by  the  33  E.  3. 

lord)  be  distreined,  the  lord  may  have  a  replcvyn  :  and  notwith-  Jl*^?l'^o'°i'/^' 
1-        I     r-         11-      •  r."^.  -Ill  i  ^  42  E.  3.  lb.  b. 

standing  before  the  bringing  ot  the  writ  he  had  no  property,  yet  9  n  g,  25. 

the  very  bringing  of  the  writ  doth   amount  to  a  claime  of  the 

goods,  and  vesteth  the  property  in  the  lord. 

"Iiisoinuch  that  no  default  vxis  in  him,  &c."  Hereby  it  is 
implyed,  that  our  author  inclined  to  this  opinion,  that  it  should 
amount  to  a  claime,  for  that  no  default  was  in  him ;  et  nemo 
debet  rem  suam  sine  facto  autdefectu  sua  amittere,  as  the  rule  is. 

(A)  TJie  bZd  chnpter  of  the  ^th  hook  of  Fleta  concludes  nearly  in  the  words  of  the  first 
part  of  the  quotations  in  the  text  ending  icith,  "  tucto  qu^m  verbo."  The  whole  of  the 
quotation  is  in  Braeton,  lib.  b.fol.  436. 

[^f;^-]  je@- Sect.  443. 

ALSO,  inquire  if  an  abbot  of  a  monasterie  die,  and  during  the  time 
of  vacation  a  man  wrongfully  entreih  in  certaine  parcels  of  land  of 
the  monasterie,  claiming  the  land  unto  him  and  his  heires,  and  of  that 
estate  dieth  seised,  and  the  land  descendeth  unto  his  heires,  ayid  after 
that  an  abbot  is  chosen,  and  made  abbot  of  the  monasterie,  a  question  is, 
if  the  abbot  may  enter  upon  the  heire  or  not  (et  puis  apresun  *  est  elect, 
et  fait  abbe  de  mesme  la  monasterie,  si  f  mesme  I'abbe  poit  enter  sur  le 
heire  ou  nemy.)  And  it  seemeth  to  some,  that  the  abbot  may  well  enter 
in  this  case,  for  this  that  the  covent  in  tirne  of  vacation  ivas  no  person 
able  to  make  continuall  claime;  for  no  more  than  they  be  personable  to 
sue  an  action,  no  more  be  they  able  to  make  continuall  claime,  for  the 
covent  is  but  a  dead  bodie  tvithout  head  {car  nient  pluis  que  ils  sont  per- 
sonable de  X  suer  action,  nient  pluis  ils  sont  able  de  faire  continual  claime, 
car  le  covent  §  n'est  forsque  |1  un  mort  corps  sans  teste) ;  for  in  time  of 
vacation  a  grant  made  unto  them  is  void ;  and  in  this  case  an  abbot  may 
not  have  a  ivrit  o/entrie  upon  disseisin  against  the  heire,  for  this,  that 
hee  ivas  never  disseised.  And  if  the  abbot  may  not  enter  in  this  case, 
then  hee  shall  bee  jmt  into  his  writ  of  right,  |  cj-c.  ivhich  shall  be  hard  for 
the  house  :  by  ivhich  it  seemeth  to  them,  that  the  abbot  may  well  enter,  ^-c. 

Qugeras  de  dubiis,  legem  bene  discere  si  vis : 

Quserere  dat  sapere,  quae  sunt  legitima  vere  T[. 

HERE,  first,  it  is  to  be  observed,  that  albeit  the  freehold  and  (Post.  331.  a, 

inheritance  is  in  this  case  in  no  person,  but  in  abeyance  or  ^^^.\^-  ^^^-  *•) 

in  consideration  of  law,  yet  an  entrie  and  claime  by  one  that  hath  I2  iioVAbr'. 

no  339.) 

*  abbe  added  L.  and  M.  and  Roh.  |  dr.  not  in  L.  and  M. 

t  mesme  not  in  L.  and  M.  or  Roh.  \  vere  not  in  L.  and  M.  nor  is  anv 

t  suer — faire,  L.  and  M.  and  Roh.  part  of  these  ttco  verses  in  the  Camt 

§  n'est — est,  L.  and  M.  and  Roh.  MSS. 

i!  come  added  L.  and  M.  and  Roh. 


263.b.26i.a.J    Of  Continuall  Claime.     L.3.C.7.S.443. 

no  right  shall  gaine  the  inheritance  by  wrong.  For  here  Lit- 
tleton saith,  and  of  such  estate  died  seised,  &c.  And  so  it  is 
in  case  of  a  bishop,  parson,  vicar,  prebend,  or  any  other  sole 
Merleb.  cap.  28.  corporation.  And  in  the  statute  of  Merlebridge  it  is  called  an 
intrusion. 

Secondly,  that  seeing  by  the  death  of  the  abbot  (which  is  the 
act  of  God)  no  person  is  able  to  make  continuall  claime,  there- 
fore a  discent  during  that  time  shall  not  prejudice  the  successor; 
for,  as  hath  beene  said,  Imjwtentia  excusat  legem.  If  an  usur- 
pation bee  had  to  a  church  in  time  of  vacation,  this  shall  not 
prejudice  the  successor,  to  put  him  out  of  possession,  but  that 
at  the  next  avoidance  hee  shall  present. 


(1  Rep.  21.) 


(F.  N.  B.  34.  M 
W,  2.  cap.  5.) 


(8  Rop.  88. 
Ant.  252.  b.) 


2  H.  7.  13. 
40  Ass.  26. 
."?4  E.  3. 
Garrantie,  69. 

(Post.  378.) 
(Ant.  239.  a.) 


(10  Rep.  1. 
Ant.  85.  250.  a 
3.  a. 

lib.  10  Lam- 
pott's  case, 
lib.  6.  Bishop 
of  Wells  case, 
lib.  1.  Rector 
of  Chedding- 
ton's  case.) 


Horace. 


"No  more  than  they  he  personable  to  sue  an  action,  &c."  Here 
that  which  hath  in  this  chapter  beene  said  is  confirmed,  viz. 
That  the  entrie  or  continuall  claime  must  pursue  the  action. 

"For  the  covent  is  hut  a  dead  hodie,  &c."  This  is  ratio  una, 
but  not  unica:  for  though  the  rest  of  the  corporation  be  no 
mort  persons,  as  the  chapter  in  case  of  deane  and  chapter,  or 
the  commonaltie  in  case  of  mayor  and  commonaltie ;  yet  cannot 
they  when  there  is  no  deane  or  maior  make  claime,  because  they 
have  neither  abilitie  nor  capacitie  to  take  or  to  sue  any  action,  as 
our  author  here  saith. 

"For  in  time  of  M^^  vacation  a  grant  made  unto  r364."{ 
them  is  void,  &c."  And  the  reason  is,  because  the  L  ^-  J 
body  politique  which  is  capable,  not  complete,  but 
wanteth  the  head.  But  this  is  to  be  understood  of  an  immediate 
grant ;  for  if  during  the  vacation  of  the  abathie  of  Pale,  a  lease 
for  life,  or  a  gift  in  taile  be  made,  the  remainder  to  the  abbot  of 
Dale  and  his  successors,  this  remainder  is  good,  if  there  be  an 
abbot  made  during  the  particular  estate. 

If  there  be  maior  and  commonaltie  of  D.  and  the  maior  dieth, 
a  graunt  made  to  the  maior  and  commonaltie  of  D.  is  void  for 
the  cause  aforesaid ;  but  in  that  case,  if  a  lease  for  life  be  made, 
the  remainder  to  the  maior  and  commonaltie  of  D.  the  remain- 
der is  good,  if  there  bee  a  maior  elected  during  the  particular 
estate. 

"  May  well  enter,  &c."  Here  by  this  (dhc.)  is  implyed,  or 
make  his  continuall  claime  in  such  sort  as  hath  beene  before 
expressed.  ^ 

Quseras  de  dubiis,  legem  bene  discere  si  vis : 

Quserere  dat  sapere,  quas  sunt  legitima  vere. 

Here  Littleton  expresseth  an  excellent  meanes  to  attaine  to 
the  reason  of  the  law,  by  enquiring  of,  and  conference  had  with, 
learned  men,  of  doubtful  cases  : 

Inter  cuncta  leges,  &  percunctahere  dodos. 

For  as  collatio  peperit  artes,  so  collatio  perficit  artes  :  and  this 
must  bee  continuall;  for  as  knowledge  increaseth,  so  doubts 
therewith  increase  also;  Oresccnte  scienlid,  crescunt  simul  et 
duhiiationcs. 

And 


L.  3.  C.  8.  Sect.  444.      Of  Eeleases.       [264.  a.  264.  b. 

And  here  Littleton  citeth  verie  aptly  two  verses;  for  it  is  truly 
said,  that  Author itates  philosopJiormn  medicorum  et  jwetarum 
sunt  in  caxisis  allegandse  et  tenendse :  and  our  author  doth  cite  a 
verse  for  memorie,  but  it  is  worthy  of  memorie. 


Chap,  8.  Of  Eeleases  (1.)  Sect.  444. 

T^ELEASES  are  in  divers  manners,  viz.  releases  of  all  the  right 

which  a  man  hath  in  lands  or  tenements,  %  ^'^^d  releases  of  actions 

personalis  and  realls,  and  other  things.    Releases  of  all  the  right  which 

men  have  in  lands  and  tenements,  ^c.  are  commonly  made  in  this  forme 

or  of  this  effect : 

HERE  our  author  beginneth  with  a  division  of  releases.  Vide  Mir.  cap.  2. 

sect.  17. 
Vide  Brit.  101. 
Bract,  li.  5.     Tract,  de  Except.  &  lib.  4.  fol.  318.  b.     Fleta,  lib.  3.  cap.  14. 

These  words  must  be  referred  thus :  releases  are  of  two  sorts, 

vizi  a  release  of  all  the  right  which  a  man  hath  either  in  lands 

and  tenements,  or  in  goods  and  chattels ;  or  there  is  a  release  of 

actions  reall,  of  or  in  lands  or  tenements;  or  personall, 

tS64:.~|  of  or  in  goods  or  chattels;  or  mixt,  S^^  partly  in  the 
b.     J  realty,  and  partly  in  the  personaltie.  Vide  Sect.  492. 

''Release,"  Relaxatio.     Of  the  etymologic  of  this  word  you 
have  heard  before.     Fleta  [a]  calleth  it  charta  de  quietd  da-  [«]  Fleta,  ubi 
mantid.  supra. 

I 

Sect. 

J  &c.  added  in  L.  and  M. 


(1)  At  common  law,  lands  could  not  be  transferred  by  one  person  to 
another  but  by  feoffment,  with  livery  of  the  seisin.  This  produced  a  notoriety 
of  the  transmutation  of  the  possession.  This  notoriety  was  in  some  measure 
effected  by  a  disseisin ;  but  that  was  only  a  tortious  possession,  liable  to  be 
defeated  by  the  disseisee.  Thus  the  disseisor  had  the  possession  ;  the  disseisee 
the  right.  To  complete  the  title  of  the  disseisor,  it  was  necessary  he  should 
acquire  the  right.  This  could  not  be  done  by  a  feoffment,  as  that  was  a  trans- 
fer of  the  possession ;  but  it  was  effected  by  a  release,  which  in  some  respects 
operates  as  an  actual  transfer  of  the  right;  in  others,  as  an  acquittal  or  dis- 
charge from  it.  The  different  degrees  of  title  in  the  disseisor,  his  heir,  or 
feoffee,  and  the  different  natures  of  the  rights  of  the  disseisee,  make  it  neces- 
sary that  releases  should  be  adapted  to  the  different  situation  of  the  parties, 
and  give  them,  as  the  circumstances  of  the  parties  vary,  a  different  effect  and 
operation. — [Note  208.] 


264.  b.]  Of  Eeleases.      L.  3.  C.  8.  Sect.  445. 


Sect.  445. 

TZNOW  all  men  by  these  presents,  that  I  A.  of  B.  have  remised, 
-*-^  released,  and  altogether  from  me  and  my  heires  quiet  claimed : 
(we  A.  de  B.  remisisse,  relaxasse,  et  omnind  de  me  et  hseredibus  meis 
quietum  clamdsse):  or  thus,  for  mee  and  my  heires  quiet  claimed  to  C 
of  D.  all  the  right,  title,  and  claim  [totum  jus,  titulum,  et  clameuni) 
■which  I  have,  or  by  any  meanes  may  have,  of  and  in  one  messuage 
with  the  appurtenances  in  F.  &c.  And  it  is  to  bee  understood,  that 
these  words,  remisisse,  et  quietum  clamasse,  are  of  the  same  effect  as 
these  words,  relaxasse. 

"TT'NOW  all  men  by  these  presents,  &c."     Here  Littleton 
-t^  sheweth  presidents  of  releases  of  right :  and  presidents  doe 
both  teach  and  illustrate,  and  therefore  our  student  is  to  be  well 
stored  with  presidents  of  all  kindes. 

Bract,  lib.  4.  " Hcmisisse,  relaxasse,  et  quietum  clamdsse."     Here  Littleton 

Fleta  u'bi  sup  sheweth,  that  there  be  three  proper  words  of  release,  and  bee 

9  H.  6.  35.  much  of  one  effect :  besides,  there  is  remniciare,  acquietare,  and 

24  E.  3.  27.  there  bee  many  other  words  of  release;  as  if  the  lessor  grants 

con^eab  ^7*'"'  ^°  ^^^  lessee  for  life,  that  he  shall  be  discharged  of  the  rent, 

(2  Ron.Abr.'4no.  this  is  a  good  release.      Vide  Sect.  532. 

403.  9  Rep.  52.) 

And  it  is  to  bee  understood,  that  there  bee  releases  in  deed, 

or  expresse  releases,  whereof  Littleton  heere  hath  shewed  an  ex- 

27  H.  S.  29.         ample.     These  expresse  releases  must  of  necessitie  be  by  deed. 

M  H^  6*44  There  be  also  releases  in  law,  and  they  are  sometimes  by  deed, 

of  an  attaint.       '^^d  sometime  without  deed.     As  if  the  lord  disseise  the  tenant, 

3  E.  3.  38.  and  maketh  a  feoffment  in  fee  by  deed  or  without  deed,  this  is 

PI  ^  ^  ^T)  \       ^  release  of  the  seigniorie.     And  so  it  is  if  the  disseisee  disseise 

mere's  case.    "    *^^  heire  of  the  disseisor,  and  make  a  feoffment  in  fee  by  deed 

(8  Rep.  136.        or  without  deed,  this  is  a  release  in  law  of  the  right.     xVnd  the 

^'°-  \^f '  }^^-      same  law  it  is  of  a  right  in  action. 
Hob.  10.  1  Sul.  ° 

79.     1  Roll.  Abr.  934.     Plo.  36.     5  Rep.  29.) 

8  E.  4.  3.  If  the  obligor  make  the  obligee  his  executor,  this  is  a  release 

21  E.  4.  2.  in  law  of  the  action,  but  the  dutie  remaines,  for  the  which  the 

executor  may  retaine  so  much  goods  of  the  testator  (1). 
If 

(1)  What  sir  Edward  Coke  observes  respecting  obligors  and  obligees  holds 
equally  between  all  other  creditors  and  debtors;  but  i^must  be  attended  with 
the  following  observations.  A  debt  is  only  a  right  to  recover  the  amount  of 
the  money  by  way  of  action;  and,  as  an  executor  cannot  maintain  an  action 
against  himself,  or  against  a  co-executor,  the  testator,  by  appointing  the  debtor 
an  executor  of  his  will,  discharges  the  action,  and  consequently  discharges  the 
debt.  Still,  however,  when  the  creditor  makes  the  debtor  his  executor,  it  is 
to  be  considered  but  as  a  specific  bequest  or  legacy,  devised  to  the  debtor  to 
pay  the  debt,  and  therefore,  like  other  legacies,  it  is  not  to  be  paid  or  retained 
till  the  debts  are  satisfied ;  and  if  there  are  not  assets  for  the  payment  of  the 
debts,  the  executor  is  answerable  for  it  to  the  creditors.  In  this  case,  it  is  the 
same  whether  the  executor  accepts  or  refuses  the  executorship.     On  the  other 

hand, 


L.  3.  C.  8.  Sect.  44o.         Of  Releases.  [26-1.  b. 

If  the  feme  oblio-ee  take  the  oblitror  to  husband,  this  is  a  re-  H  H.  7.  4. 
lease  in  law.     The  like  law  is,  if  there  be  two  femes  obligees,  gj;  4  3     ' 
and  the  one  take  the  debtor  to  husband  (2). 

If  an  infant  of  the  age  of  seventeene  yeares  release  a  debt, 
that  is  void  ;  but  if  an  infant  make  the  debtor  his  executor,  this 
is  a  good  release  in  law  of  the  action  (3). 

But  if  a  feme  executrix  take  the  debtor  to  husband,  this  is  no 
release  in  law,  for  that  should  be  a  wrong  to  the  dead,  and  in 
law  worke  a  devastavit,  which  an  act  in  law  shall  never  worke. 
And  so  it  was  adjudged  in  the  king's  bench,  Mich.  30  &  31  Eliz. 
in  which  case  I  was  of  counsell. 

But  it  is  to  be  observed,  that  there  is  a  diversitie  betweene  a  30  E.  3.  24. 
release  in  deed,  and  a  release  in  law  ;  for  if  the  heire  of  the  dis-  |2_E.  ^^-^^it.^^ 
seisor  make  a  lease  for  life,  and  the  disseisee  release  his  right  to  ("j^^j^  2?,(i. 
the  lessee  for  his  life,  his  right  is  gone  for  ever.     But  if  the  dis-  1  Leo.  320. 
seisee  doth  disseise  the  heiro  of  the  disseisor  and  make  a  lease  for  p,^''^-  ■^^-• 
life,  by  this  release  in  law  the  right  is  released  but  during  the  life  Ymch.  iu.) 
of   the  lessee ;    for  a  release  in  law  shall  be  expounded  more 
favourable,  according  to  the  intent  and  meaning  of  the  parties, 

than 


hand,  if  the  debtor  makes  the  creditor  his  executor,  and  the  creditor  accepts 
th6  executorship,  if  there  are  assets,  he  may  retain  his  debt  out  of  the  assets, 
against  the  creditors  in  equall  degree  with  himself;  but  if  there  are  not  assets, 
he  may  sue  the  heir,  where  the  heir  is  bound.  See  Wankford  v.  Wankford, 
1  Salk.  299.  Selwin  v.  Browne,  1  Bro.  Cas.  in  Par.  179.  For.  243.  Vin.  vol. 
8.  p.  198.     2  Eq.  Cas.  Abr.  461.  note  at  (Q).— [Note  209.] 

(2)  In  the  case  of  Smith  &  Uxor  v.  Stafford,  Hob.  216.  the  husband  pro- 
mised the  wife  before  marriage  that  he  would  leave  her  worth  lOOA  The  marri- 
age took  effect,  and  the  question  was,  whether  the  marriage  was  a  release  of  the 
promise.  All  the  judges  but  Hobart  were  of  opinion,  that,  as  the  action  could 
not  rise  during  the  marriage,  the  marriage  could  not  be  a  release  of  it.  The  doc- 
trine of  this  case  seems  to  be  admitted  in  the  case  of  Gage  or  Gray  v.  Acton, 
1  Salk.  325.  12  Mod.  290.  The  case  there  arose  upon  a  bond  executed  by  the 
husband  to  the  wife  before  the  marriage,  with  a  condition  making  it  void  if  she 
survived  him,  and  he  left  her  1,000/.  Two  of  the  judges  were  of  opinion,  that 
the  debt  was  only  suspended,  as  it  was  on  a  contingency  which  could  not  by  any 
possibility  happen  during  the  marriage.  But  lord  chief  justice  Holt  differed 
from  them  ;  he  admitted  that  a  covenant  or  promise  by  the  husband  to  the  wife 
to  leave  her  so  much  in  case  she  survives  him  is  good,  because  it  is  only  a 
future  debt  on  a  contingency  which  cannot  happen  during  the  marriage,  and 
that  is  precedent  to  the  debt;  but  that  a  bond  debt  was  a  present  debt,  and 
the  condition  was  not  precedent,  but  subsequent,  that  it  made  a  present  duty ; 
and  the  marriage  was  consequently  a  release  of  it.  The  case  afterwards  went 
into  chancery.  The  bond  was  taken  there  to  be  the  agreement  of  the  parties, 
and  relief  accordingly  decreed.  2  Vern.  481.  A  like  decree  was  made  in  the 
case  of  Cannel  v.  Buckle,  2  P.  W.  243.— [Note  210.] 

(3)  If  the  obliijor  makes  the  ohliyee  his  executor,  the  ohlujee  may  retain  ;  hiit 
that  is  not  ajiplicaUe  to  the  case  put  here.  Therefore  he  mai/  make  an  executor 
nt  17  ;  tamen  supra  89.  h.  it  is  said  that  it  is  at  18.  It  should  seem  that  the  case 
here  is  xmderstood  of  17  complete,  et  supra  89.  of  17  heg inning  ;  and  thus 'the 
passages  agree.  D'Avila  His.  King  of  France  is  major  at  14  beginning.  Thus 
it  seems  that  puberty,  ivhich  by  the  civil  law  holds  from  14  to  18,  is  understood 
0/I8  beginnin<j ;  and  thus  our  laio  agrees  ^cith  the  c i oil  law,  imTpnheri  non  licet 
testari  before  17  complete,  and  18  beginning.     Lord  Nott.  MSS. — [Note  211.] 


264.  b.  265.  a.]       Of  Keleases.       L.  3.  C.  8.  Sect.  446. 

than  a  release  in  deed,  which  is  the  act  of  the  partie,   ["965.1 
and  Q^HT'  shall  be  taken  most  strongly  against  himselfe,   L     '''•      J 
and  so  in  the  case  aforesaid,  where  the  debtor  is  made 
executor. 

(10  Kep.  47.)  '•  All  the  right,  title,  and  claim  {totum  jvs,  titulum  &  da- 

meum)."  But  note,  that/i<s,  or  right,  in  geuerall  signification 
includeth  not  onely  a  right  for  the  which  a  writ  of  right  doth 
lie,  but  also  any  title  or  claime,  either  by  force  of  a  condition, 
mortmaine,  or  the  like,  for  the  which  no  action  is  given  by  law, 
but  only  an  entry. 


Sect.  446. 

ALSO,  these  ivords  ivhich  are  commonly  'put  in  such  releases,  *scilicet 

(quae  quovismodo  in  futurum  habere  potero)  are  as  void  in  law; 

for  no  right  passeth  by  a  release,  hut  the  right  which  the  releasor  hath  at 

the  time  of  the  release  made  (1).  For  if  there  be  father  and  so7ine,  and  the 

father 

*scilicet — &c.  in  L.  and  M.  and  Roll. 

(l)To  prevent  maintenance,  and  the  multiplying  of  contentions  and  suits, 
it  was  an  established  maxim  of  the  common  law,  that  no  possibility,  right,  title, 
or  any  other  thing  that  was  not  in  possession,  or  vested  in  right,  could  be  granted 
or  assigned  to  strangers. — A  right  in  action  could  not  be  transferred  even  by 
act  of  law ;  nor  was  it  considered  as  transferred  to  the  king  by  the  general 
transferring  words  of  an  act  of  attainder.  (See  the  Marquis  of  Winchester's 
case,  3  Rep.  2.  b. — But  a  right  or  title  to  the  freehold  or  inheritance  of  lands 
might  be  released  in  five  manners. — 1.  To  the  tenant  of  the  freehold  in  fact, 
or  in  law,  without  any  privity. — 2.  To  him  in  remainder. — 3.  To  him  in  re- 
version.—4.  To  him  who  had  right  only  in  respect  of  privity  ;  as,  if  the  tenant 
were  disseised,  the  law,  notwithstanding  the  disseisin,  might  release  his  services 
to  him. — 5.  To  him  who  had  privity  only,  though  he  had  not  the  right ;  as  if 
tenant  in  tail  made  a  feoffment  in  fee,  after  this  feofi'mcnt  no  right  remained  in 
him ;  yet,  in  respect  of  the  privity  only,  the  dunor  might  release  to  him  the 
rent  and  services. — 6.  So,  if  the  terre-tenants  and  the  person  entitled  to  the 
right  or  possibility  joined  in  a  grant  of  the  lands,  it  would  pnss  them  to  the 
grantee  discharged  from  the  right  or  possibility.  See  10  Hep.  49.  b. — But  the 
common  law  is  altered  in  the  above  instances  in  many  respects. — On  the  assign- 
ment of  things  in  action,  see  ante  note  1,  to  p.  232.  b.  The  passage  in  the  text 
was  cited  by  lord  chief  justice  Trevor,  in  delivering  his  opinion  on  the  case  of 
Arthur  v.  Bokenham,  (Fitzgib.  234,)  with  an  observation,  that  the  doctrine 
laid  down  there  by  Littleton  had  never  been  contradicted.  On  the  trans- 
missibility,  conveyance,  assignment,  and  devise  of  contingent  remainders,  and 
executory  estates  and  interests,  see  Mr.  Fearne's  Ks.say  on  Contingent  Piemain- 
ders  and  Executory  Devises,  6th  ed.  pp.  364,  365,  366,  367,  368,  369,  370, 
371.  548,  549,  550,  551,  552,  553,  554,  555,  556,  557,  558,  559,  560,  561, 
and  562;  and  Mr.  Preston's  Treatise  on  Conveyancing,  vol.  1.  p.  142.  209. 
301.  The  case  of  Hoe  dem.  Perry  v.  Jones,  1  Hen.  Black.  30.  seems  to  have 
established  the  power  of  testamentory  dispositions  of  such  contingent  and  execu- 
tory estates  and  possibilities,  accompanied  with  an  interest,  as  would  be  descendi- 
ble to  the  heir  of  the  object  of  them,  dying  before  the  coutingeucy  or  event  on 

which 


L.  3.  C.  8.  Sect.  446.  Of  Eeleases.  [265.  a. 

father  he  disseised,  and  the  sonne  {living  his  father)  releaseth  hy  his 
deed  to  the  disseisor  all  the  right  which  he  hath  or  may  have  in  the  same 
tenements  without  clause  of  warrantie,  c^c.  and  after  the  father  dieth, 
^c.  the  Sonne  may  lawfully  enter  upon  thejJossession  of  the  disseisor, for 
that  he  had  no  right  to  the  land  in  his  father  s  life  (pur  ceo  que  il  n'avoit 
t  droit  en  la  terre  |  en  la  vie  son  pier)  hut  the  right  descended  to  him 
after  the  release  made  hy  the  death  of  his  father,  ^"c. 

"VTOTE,  a  man   may  have  a  present  right,  though  it  cannot 
J-'    take  eifect  in  possession,  but  in  fit  two  (2). 

As  hee  that  hath  a  right  to  a  reversion  or  remainder,  and  such  (2  Roll.  iU)r. 
a  right  hee  that  hath  it  may  presently  release.    But  here  in  the  400.   ^  Rep^^^ 
case  which  Littleton  puts,  where  the  sonne  release  in  the  life  of  ^r^^^'^ 

his 

f  nul  added  in  L.  and  M.  and  J  quant  il  relessases  added  in  L. 

JRoh.  and  M.  and  Rah. 


which  the  vesting  or  acquisition  of  them  depends. — It  has  been  contended  to 
be  a  rule  of  law,  that,  whatsoever  can  be  devised,  may  be  granted ;  and  conse- 
quently, that  this  case  is  an  authority  to  show,  that  the  contingent  and  execu- 
tory estates  and  interests,  to  which  it  applies,  may  be  granted. — [Note  212.] 

(2)  This  doctrine  was  fully  investigated  in  the  case  of  Dormer  v.  Fortescue, 
Yin.  fol.  18,  fol.  413.  3  Atk.  123.  135.  Bro.  Par.  Cas.  v.  4.  353.  405.  The  case 
there  was,  that  an  estate  was  limited  to  the  use  of  A.  for  99  years,  if  he  should 
so  long  live ;  and  after  his  decease,  or  the  sooner  determination  of  the^  estate 
limited  to  him  for  99  years,  to  the  use  of  trustees  and  their  heirs,  during  his 
life,  upon  trust  to  preserve  the  contingent  remainders;  and.  after  the  end  or 
determination  of  that  term,  to  the  use  of  ^.'s  first  and  other  sons  successively 
in  tail  male,  with  several  remainders  over.  A.  having  a  son,  they  joined  in 
levying  a  fine  and  suffering  a  common  recovery,  in  which  the  son  was  vouched. 
If  the  trustees  took  a  vested  estate  of  freehold  during  the  life  of  A.  the  recovery 
was  void,  there  not  being  a  good  tenant  to  the  praecipe  ;  but  if  they  took  only 
a  contingent  estate,  the  freehold  was  in  the  son,  and  of  course  there  was  a  good 
tenant  to  the  pra3cipe.  Upon  this  point,  the  case  was  argued  in  the  court  of 
king's  bench,  and  afterwards  on  appeal  before  the  house  of  lords,  where  all 
the  judges  were  ordered  to  attend.  Lord  chief  justice  Lee,  when  the  cause 
was  heard  in  the  king's  bench,  and  lord  chief  justice  AVilles,  in  delivering  the 
opinion  of  the  judges  in  the  house  of  lords,  entered  very  fully  into  the  dis- 
tinction between  contingent  and  vested  remainders. — They  seem  to  have  laid 
down  the  following  points.  That  a  remainder  is  contingent,  either  where  the 
person  to  whom  it  is  limited  is  not  in  esse  :  or  where  the  particular  estate  may 
determine  before  the  remainder  can  take  place ;  but  that,  in  every  case,  where 
the  person  to  whom  the  remainder  is  limited  is  in  esse,  and  is  actually  capable 
or  entitled  to  take  on  the  expiration,  or  sooner  determination,  of  the  particular 
estate,  supposing  that  expiration,  or  determination,  to  take  place  at  that 
moment,  there  the  remainder  is  vested.  That  the  doubt  arose,  by  not  ad- 
verting to  the  distinction  between  the  different  nature  of  the  contingency,  in 
those  cases  where  the  remainder  is  limited  to  a  person  in  esse,  but  the  title 
of  the  remainder-man  to  take  depends  on  a  collateral  or  extraneous  con- 
tingency, which  may  or  may  not  take  place  during  the  continuance  of  the 
preceding  estate,  and  those  cases,  whore  the  preceding  estate  may  endure 
beyond  the  continuance  of  the  estate  in  remainder.  Thus  if  an  estate  is  limited 
to  A.  for  life,  and  after  the  death  of  A.  and  /.  *S'.  to  B.  for  life,  or  in  tail; 
there,  during  the  life  of  7.  S.  the  title  of  B.  depends  on  the  contingency  of 
/.   >S'.  dying  in  the  lifetime  of  A.     This  is  an  event  which  either  may  or  may 

not 


265.  a.  265.  b.J       Of  Releases.       L.  3.  C.  8.  Sect.  446.' 

H  Britton,  his  father,  this  release  is  void,  [a]  because  he  hath  no  right  at  all 

fol.  101.  at  the  time  of  the  release  made,  but  all  the  right  was  at  that  time 

4'>  E  i  2i'  ^'^  ^'^*^  father;  but  after  the  decease  of  the  father,  the  soane  shall 

10  h!  6.  4. '  enter  into  the  land  against  his  owne  release. 
25  As?.  7.' 

27  E.  3.  Execution,  130.     1  Rep.  112.  b. 

16  E.  3.  The  baron  makes  a  lease  for  life  and  dieth,  the  release  made 

Barre,  24d.  ^    ^^       -^^  ^  j^g^.  (j^^gj.  tf,  [jJjq  jq  reversion  is  cood,  albeit  shee 

lloescase,  -^                              p        •               •         i  •        •                      P        ^ 

5  part.  f.  70,  71.  hath  no  cause  oi  action  against  him  in  praesenti. 

(Sect.  706.)  "  Withrnit  clause  of  icm-r antic."     For  if  there  bee  a  warrantee 

annexed  to  the  release,  then  the  sonne  shall  be  barred.  For 
albeit  the  release  cannot  barre  the  right  for  the  cause  aforesaid, 
yet  the  warranty  may  rcbutt,  and  barre  him  and  his  heires  of  a 
future  right  which  was  not  in  him  at  that  time  :  and  the  reason 

20  H.  6.  29.         (which  in  all  cases  is  to  be  sought  out)  wherefore  a  warrantie 

being  a  covenant  reall  should  barre  a  future  right,  is  for  avoiding 
of  circuitie  of  action  (which  is  not  favoured  in  law)  ;  as  he  that 
made  the  warrantie  should  recover  the  land  against  the  ter-tenant, 
and  he  by  force  of  the  warrantie  to  have  as  much  in  value  against 
the  same  person :  yet  is  there  a  diversity  betweene  a  warrantie 
[6]  39  H.  6. 43.    and  a  feoffment;  [Z/]  for  if  there  be  grandfather,  father,  and  sonne, 

21  E.  4.  SI.         and  the  father  disseiseth  the  grandfather,  and  make  a 

15  E.  4  tit.  feoffment  JG@-  in  fee,  the  grandfather  dieth,  the  father  fOGo  "I 
9  H.  7.  l.'b.  against  his  own  leofimeut  shall  not  enter ;  but  it  he  die,  \_  b.  J 
2  E.  3.  38.  bis  sonne  shall  enter.  And  so  note  a  diversity  betweene 

io'f'^^^c'^"^  a  release,  a  feoffment,  and  a  warrantie  ;  a  release  in  that  case  is 
firmation,  24.  void ;  a  feoffment  is  good  against  the  feoffor,  but  not  against 
s  E.  2.  G;irr.  62.  his  heire ;   a  warrantie  is  good  both  against  himselfe  and  his 

11  H.  4.  .3.3.         heires  r  11 
43E.  3.  17.  ficiresi^x;. 

42  E.  3.  24.  per  Finchden.     17  E.  3.  67.  Lib.  1.  fol.  112,  113.  in  Albanie's 
case.     (9  Hep.  75.)     (1  Roll.  Rep.  197.) 

And 


not  take  place  during  the  continuance  of  the  preceding  estate  ;  and  ^.'s  estate 
therefore  it  necessarily  contingent.  But  then,  supposing  /.  S.  to  die;  still  it 
remains  an  uncertainty  whether  i?.'s  estate  will  ever  take  place  in  possession; 
for,  if  the  remainder  be  limited  to  B.  for  life;  there  if  B.  dies  in  yl.'s  lifetime, 
^.'s  estate  would  endure  beyond  the  continuance  of  the  estate  limited  in  re- 
mainder. The  same  would  be  the  case  if  the  remainder  over  were  limited  to 
B.  in  tail,  and  B.  was  to  die  in  J..'s  lifetime  without  issue. — Yet,  in  both  cases, 
it  was  agreed  that  B.  took,  not  a  contingent,  but  a  vested  remainder.  Hence, 
they  inferred  that  it  was  not  the  possibility  of  the  remainders  over  never  taking 
effect  in  possession,  but  the  remainder-man's  not  having  a  capacity  or  title  to 
take,  supposing  the  preceding  estate  at  that  instant  to  expire,  or  determine, 
and  its  being  uncertain  whether  he  ever  will  obtain  that  capacity  or  title, 
during  the  continuance  of  the  preceding  estate,  that  makes  the  remainder 
contingent.  Upon  these  grounds  they  determined  that  the  trustees  took  a 
vested  remainder,  and  that  the  recovery  therefore  was  void.  The  doctrine 
established  in  the  case  of  Dormer  and  Fortescue  is  laid  down  by  sir  Edward 
Coke,  10  Eep.  85;  where  he,  with  great  accuracy  of  expression,  observes, 
that  where  it  is  dubious  and  uncertain  whether  the  use  or  estate  limited  in 
future  shall  ever  vest  in  interest  or  not,  then  the  use  or  estate  is  in  contin- 
gency; because,  upon  a  future  contingent,  it  may  either  vest  or  never  vest,  as 
the  contingent  happens.     And  see  1  Rep.  137.  b. — [Note  213.] 

(1)  Ant.  186.   it  is  laid  down  that  a  man  may  warrant  more  than  passes 
from  him.     In  Fitz.  234.  lord  chief  justice  Trevor  observes,  that  the  reason 

why 


L.  3,  C.  a  Sect.  UQ.      Of  Keleases.  [265.  b. 

And  here  are  three  diversities  worthy  of  observation,  viz.  First, 
betwecne  a  power  or  an  authoritie,  and  a  right.  Secondly,  be- 
tweene  powers  and  authorities  themselves.  Thirdly,  betweene 
a  right  and  a  possibilitie. 

As  to  the  first,  if  a  man  by  his  last  will  deviseth  that  his  exe- 
cutors shall  sell  his  land,  and  dieth,  if  the  executors  release  all 
their  right  and  title  in  the  land  to  the  heire,  this  is  void,  for  that 
they  have  neither  right  nor  title  to  the  land,  but  only  a  bare  au-  13  11.  7.  11. 
thority,  which  is  not  within  Littleton's  case  of  a  release  of  a  right. 
And  so  it  is  if  cesfi/  que  use  had  devised  that  his  feoffees  should 
have  sold  the  land.'  Albeit  they  had  made  a  feoffment  over,  yet 
might  they  sell  the  use,  for  their  authority  in  that  case  is  not 
given  away  by  the  livery. 

As  to  the  second,  there  is  a  diversity  betweene  such  powers  or  (i  Rep.  ill.  a. 
authorities  as  are  only  to  the  use  of  a  stranger,  and  nothing  for  17.3.  Ant.  215.  a. 
the  benefit  of  him  that  made  the  release  (as  in  the  case  before)  ^^^-  °-  237.  a.) 
and  a  power  or  authority  which  respecteth   the  benefit  of  the 
releasor ;  as    in   these  usuall  powers   of  revocation,   when  the 
feoffer,  &c.  hath  a  power  to  alter,  change,  determine,  or  revoke 
the  uses  (being  intended  for  his  benefit)  he  may  release ;  and 
where  the  estates  before  were  defeasible,  he  may  by  his  release 
make  them  absolute,  and  seclude  himselfe  from  any  alteration  or 
revocation,  as  it  hath  beene  resolved ;  which  diversity  you  may 
read  in  [?»]  Alhanies  case  (2).  ["']  Lib.  1. 

As  to  the  third,  before  judgement  the  plaintife  in  an  action  of  Albamc's  case, 
debt  relcaseth  to  the  baile  in  the  king's  bench   all  demands ;  Li^b.^5  lloo's 
and  after  judgment  is  given,  this  shall  not  barre  the  plaintife  to  case,  70,  71. 
have  execution  against  the   baile,  because  at  the  time  of  the  10  II.  6.  4. 
release  he  had  but  a  meere  possibility,  and  neither  jiws  in  re,  nor 
jus  ad  rem,  but  the  duty  is  to  commence  after  upon  a  contingent, 
and  therefore  could  not  be  released  presently.     So  if  the  conu-  25Ass.  p.  7. 
see  of  a  statute,  &c.  release  to  the  conusor  all  his  right  in  the  27  E.  3. 
land,  yet  afterwards  he  may  sue  execution  ;  for  he  hath  no  right  Execution,  130. 
in  the  land  till  execution,  but  only  a  possibilitie;  and  so  have  I  1^0(^521  inter.' 
knowne  it  adjudged  (3).  Borough  et 

Gray.     (2  Roll.  Abr.  404.  408.     Hob.  46.     2  Cro.  401.  449.) 

Sect. 


why  the  feoffment  prevails  against  the  father  is,  that  by  the  disseisin  he  had 
acquired  possession,  and  might  make  a  feoffment,  and  the  operation  of  a  feoff- 
ment is  to  bar  future  and  contingent  rights. — [Note  214.] 

(2)  See  Note  2  to  page  113.  The  doctrine  of  the  suspension  and  ex- 
tinction of  the  powers  will  be  considered  in  a  note  to  the  chapter  of  Discon- 
tinuance. 

(3)  In  the  king's  bench,  where  the  proceeding  is  by  bill,  the  bail  is  not 
bound  in  a  certain  sum  to  the  plaintiff,  but  only  undertakes  that  the  defendant 
shall  pay  the  condemnation  money,  or  render  his  body  to  prison  ;  so  that  they 
are  but  in  the  nature  of  gaolers  to  the  defendant  :  but  in  the  common  pleas, 
the  bail  are  bound  to  the  plaintiff  in  a  certain  sura.  5  llcp.  70.  10  Kep.  51. — 
[Note  215.] 


265.  b.  266.  a.]        Of  Releases.     L.  3.  C.  8.  Sect.  447. 

Sect.  447. 

A  LSO,  in  releases  of  all  the  rigJit  tvhicha  man  hath  in  certaine  lands, 
^c.  it  behoveth  him  to  whom  the  release  is  made*  in  any  case,  that 
he  hath  the  freehold  in  the  lands  t  in  deed,  or  in  law,  at  the  time  of  the 
release  made,  c^c.X  For  in  every  case  where  he  to  whom  the  release  is 
made  hath  the  freehold  in  deed,  or  in  law,  at  the  time  of  the  release  \\,  <fc. 
there  the  release  is  good  (§  donque  le  releas  est  bone)  (4). 

49  E.  3.  28.         "  r\F  all  the  right."     This  must  be  intended  of  a  bare  right 

and  not  of  a  release  of  right,  whereby  any  estate  passeth, 

as  to  a  lessee  for  yeares,  &c.  as  shall  be  said  hereafter.     Also  it 

(Doct.  and  Stud,  ^mgt  be  intended  of  a  release  of  a  right  of  freehold  at  the  least, 

10  Rep.  48.  b.      ^^^^  ^^^  ^0  ^  right  for  any  terme  for  yeares  or  chattle  reall ;  as  if 

Post.  276.  a.)       lessee  for  yeares  bee  ousted,  and  hee  in  the  reversion  disseised, 

and  the  disseisor  maketh  a  lease  for  yeares,  the  first  lessee  may 

release  unto  him.    All  which  is  implyed  in  the  first  &c.    Also  in 

some  case  a  release  of  a  right  made  to  one  that  hath  neither  free- 

[c]  7  E.  4.  13.      hold  in  deed,  nor  freehold  in  law,  is  good  and  available  in  law,  [c] 

20  H.  6.  29.         as  the  demandant  may  release  to  the  vouchee,  and  yet  the  vouchee 

18  E  3  12  ^inth.  nothing  in  land  :  but  the  reason  of  that  is,  for  that  when 

8  H.  4.  5.  the  vouchee  entreth  into  the  warrantie,  he  becommeth  tenant  to 

5  E.  3.  36.  the  demandant,  and  may  render  the  land  to  him,  in  respect  of 

^^.,  ^■^''-  ^_.     the  privitie:  but  an  estranger  cannot  release  to  the  vouchee, 
V  ide  Sect.  490,    ,         i  .     '    .         .  i      •  °      ,   ,  ,     c  ^^      ^       ^ 

491.  because,  in  rei  veritate,  he  is  not  tenant  ot  tne  land. 

(Post.  284.  b. 

3  5:Sb.   p-^-i'^ 

[d\  10  E.  4. 14.  thep/cE 

12  Ass.  p.  41.  lu  time  of  vacation  an  annuity,  that  the  person  (A)  ought  to 

46^E^'3^  r  b  P^^'  ^^^^y  ^^  released  to  the  patron  in  respect  of  the  privity ; 

8  H.  6.'23.   "  but  a  release  to   the  ordinary  only  seemeth  not  good,  because 

21  H.  7.41.  the  annuitie  is  temporall. 

s^R^''  ^^tk  ^'  ^^  *  disseisor  make  a  lease  for  life,  the  disseisee  may  release  to 

5  Rep.' 24.  h.  ^'^^^  (-l^)  j  ^^^  ^^  ^\x(A\  a  release  of  a  bare  right  there  needs  no 
2  Ci-o.  131.)  privity,  as  shall  be  said  hereafter.  But  if  the  disseisor  make  a 
lease  for  yeares,  the  disseisee  cannot  release  to  him  (C),  because 
he  hath  no  estate  of  freehold.  And  yet  in  some  case  a  right  of  free- 
hold shall  drowne  in  a  ehattell ;  as  if  a  feme  hath  a  right  of  dower 
she  may  release  to  the  gardein  in  chivalry,  and  her  right  of 
freehold  shall  drowne  in  the  chattle,  because  the  writ  of  dower 
doth  lie  against  him,  and  the  heire  shall  take  advantage  of  it. 

And 

*    any — snch,  in    L.    and    M.    and  j]    made  added  in  L.  and  M.  and 

Roh.  Ptoh. 

f    &c.    added   in    L.    and   M.    and  §    donque    not    in    L.    or   31.    or 

Roh.  Roh. 

X   &c.  not  in  L.  and  M.  or  Roh. 

(A)  "person"  «ee)H«  to  he  jyrinted  here  by  mistake  instead  q/"  parson.     See  Mr.  liitso's 
Intr.  J).  119. 

(B)  i.  e.  to  the  tenant  for  life,  as  it  seems. 

(C)  i.  e.  to  the  tenant  for  years,  as  it  seems. 

(4)  Ant.  1st  Note  to  this  Chapter. 


L.  3.  C.  8.  Sect.  447.       Of  Releases.  [266.  a. 

And  it  is  to  be  observed,  that  by  the  antient  maxime  of  the  ^^J^f^'^^^^-^- 
common  law,  a  right  of  en  trie  or  a  chose  in  action,  cannot  be 
granted  or  transferred  to  a  stranger,  and  thereby  is   avoyded  M^n-or,  cap.  2. 
great  oppression,  injurie,  and  injustice.    Md  charter,  mil  vcnde,  (''2  roH.  Abr. 
ne  md  done  vault  perpetuabnent  si  le  donor  11' est  seisie  al  temps  de  45,  46,  4-7,  48. 
contracts  dc  2.  droits,  si  deldroit  dc  jJossession,  et  del  droit  del  pro-  Ant.  214.  a. 
pertie.     And  therefore  well  saith  Littleton,  that  he  to  whom  a  pj^^'^^  ggo.) 
release  of  a  right  is  made  must  have  a  freehold. 

For  the  better  understanding  of  transferring  of  naked  rights  to 
lands  or  tenements,  either  by  release,  feoffment,  or  otherwise,  it  is 
to  be  knowne  that  there  \sjns  jJroprietatis,  a  right  of  ownership,  Mirror, ubisu- 
jus possessiones,  a  right  of  seisin  or  possession,  audjysjjroj^-ietatis  f-^^'^^^^^^f^' 
& 2^ossessionis,  a  right  both  of  property  and  possession:  and  this  Bri'tton,fohS9. 
is  antiently  called  Jus  dujilicatiun,  or  droit  droit.    For  example,  if  121.  Braeton, 
a  man  be  disseised  of  an  acre  of  land,  the  disseisee  hath  jus  pro-  lib.  5.  fol.  372. 
jirirtatis,  the  disseisor  hathy!?s  possessionis  (A)  ;  and  if  the  dis- 
seisee release  to  the  disseisor,  hee  hath  j^^s  proprictatis  et  pos- 
session is  (1).    And  regularly  and  holdeth  true,  that  when  a  naked 
right  to  land  is  released  to  one  that  hath  jus  j^ossessionis,  and 
another  by  a  meane  title  recover  the  land  from  him,  the  right  of 
possession  shall  draw  the  naked  right  with  it,  and  shall  not  leave  (2  Rep^  56. 
a  right  in  him  to  whom  the  release  is  made.     For  example,  if  the  ^^■^^'^-  '^^^^^ 
heire  of  the  disseisor  being  in  by  discent>4.  doth  disseise  him,  the  2S6  a.) 
disseisee  release  to  A.  now  hath  A.  the  meere  right  to  the  land. 
But  if  the  heir  of  the  disseisor  enter  into  the  land,  and  regaine 
the  possession,  that  shall  draw  with  it  the  meere  right  to  the 
land,  and  shall  not  regaine  the  possession   only,  and  leave  the 
meere  right  in  J.,  but  by  the  recontinuance  of  the  possession,  the 
meere  right  is  therewith  vested  in  the  heire  of  the  disseisor. 

But  if  the  donee  in  taile  discontinue  in  fee,  now  is  the  reversion 
of  the  donor  turned  to  a  naked  right.  If  the  donor  release  to  the 
discontinuee  and  die,  and  the  issue  in  taile  doth  recover  the 
land  against  the  discontinuee,  he  shall  leave  the  reversion  in  the 
discontinuee ;  for  the  issue  in  taile  can  recover  but  the  estate  taile 
onely,  and  by  consequence  must  leave  the  reversion  in  the  dis- 
continuee, for  the  donor  cannot  have  it  against  his  release ;  but 
if  the  disseisee  enter  upon  the  heire  of  the  disseisor,  and  infeoffe 
A.  in  fee,  and  the  heir  of  the  disseisor  recover  the  whole  estate, 
that  shall  draw  with  it  the  meere  right,  and  leave  nothing  in  the 
feoffee.  A^ota  the  diversity.  Another  diversity  is  observable 
when  the  naked  right  is  precedent  before  the  acquisition  of  the  (Post.  319.  a.) 
defeasible  estate,  for  there  the  recontinuance,  of  the  defeasible 

estate 

(A)  But,  accordinrj  to  sir  William  Blackeione,  the  disseisin  f/ives  to  the  disseisor  no  more 
than  an  actual  possession,  and.  leaves  jus  possessionis  in  the  disseisee.  See  Black.  Comm. 
V.  2.  p.  195.  Archbold's  ed. — However,  lord  Coke  perhaps  only  meant  to  sai/,  that  the 
disseisor  hath  jus  possessionis  against  strangers  011/^.  For  thonyh  a  stranger  in  the  name 
and  to  the  use  of  the  disseisee  may  enter  into  the  lands,  and  thereby  revest  the  same  in  the 
disseisee,  even  without  the  knowledtje  or  agreement  of  the  latter  (see  ante  2b8.  a..);  yet  a 
stranger  may  not,  in  this  case,  enter  in  his  otvn  name  and  to  his  own  use. 

(1)  These  may  be  subdivided,  with  respect  to  the  disseisor,  into  that  bare, 
naked  possession  which  he  acquires  by  the  disseisin,  and  the  estate  by  title 
■which  his  heir  acquires  by  the  descent ;  and,  with  respect  to  the  disseisee,  into 
that  right  of  possession  which  he  can  restore  by  entry,  and  the  bare  right  which 
he  can  only  recover  by  action. — [Note  216.] 


475.  478.  487. 


266.  a.  266.  h.]      Of  Releases.        L.  3.  C.  8.  Sect.  448. 

[e]  5  Asp.  1.         estate  shall  not  draw  with  it  the  preceding  right,     [e]  As  if  the 
0  E  3  ^7'  disseisee  disseise  the  heire  of  the  disseisor,  albeit  the  heire  re- 

4E.  3. '    '  cover  the  land  against  the  disseisee,  yet  shall  he  leave  the  pre- 

Estopji.  133.        ceding  right  in  the  disseisee.     So  if  a  woman  that  hath  right  of 
1?  F*^  "''  dower  disseise  the  heire,  and  he  recover  the  land  against  her,  yet 

Entries'?-  shall  he  leave  the  right  of  dower  in  her. 

12  Ass  41.  Another  diversity  is  to  be  noted,  when  the  mere  right  is  sub- 

fr  R '  ^  7(f '  ^V'  sequent,  and  transferred  by  act  in  law ;  there,  albeit  the  possession 
be  recontinued,  yet  that  shall  not  draw  the  naked  right  with  it, 
but  shall  leave  it  in  him ;  as  if  the  heire  of  the  disseisor  be  dis- 
seised, and  the  disseisor  (A)  infeofie  the  heire  apparent  of  the  dis- 
23  H.  8.  tit.         seisee  being  of  full  age,  and   then  the  disseisee   dieth,  and  the 
Restore  al  naked  right  descend  to  him,  and  the  heir  of  the  disseisor  recover 

50  E.  3.  7.  the  land  against  him,  yet  doth  he  leave  the  naked  right  in  the 

Vid  Sect.  473.  heire  of  the  disseisee.  So  if  the  discontinuee  of  tenant  in  taile 
infeoffe  the  issue  in  taile  of  full  age,  and  tenant  in  taile  die,  and 
then  the  discontinuee  recover  the  land  against  him,  yet  he  leaveth 
[c]  38  E.  3.  16.  the  naked  right  in  the  issue,  [c]  But  if  the  heire  of  the  disseisor 
^p    /''•  ?^"  be  disseised,  and  the  disseisee  release  to  the  disseisor  upon  con- 

4  Kcp.  9.  h.)  dition,  if  the  condition  be  broken,  it  shall  revest  the  naked  right. 
And  so  if  the  disseisee  hath  entered  upon  the  heire  of  the  dis- 
seisor, and  made  a  feoffment  in  fee,  upon  condition,  if  he  entred 
for  the  condition  broken,  and  the  heir  of  the  disseisor  entred  upon 
him,  the  naked  right  should  be  left  in  the  disseisee.  But  if  the 
heire  of  the  disseisor  had  entred  upon  the  condition  broken, 
then  the  right  of  the  disseisee  had  beene  gone  for  ever.  But 
now  let  us  heare  what  Littleton  saith. 


fi^  Sect.  448.  P66.1 

TpREEHOLD  in  law  is,  if  a  man  disseiseth  another,  and  dicth 
seised  (Franktenement  en  lay  est,  sicome  un  home  disseisist  un 
auter,  et  *  morust  seisie),  whereby  the  tenements  descend  to  his  son, 
albeit  that  his  sonnedoth  not  enter  into  the  tenements,  yet  he  hatha  free- 
hold in  law,  lohich  by  force  of  the  discent  is  cast  upon  him,  and  there- 
fore a  release  made  to  him,  so  being  seised  of  a  freehold  in  laiv,  is  good 
enough;  and  if  he  taketh  tvife  being  so  seised  in  laiv,  although  he  never 
enter  in  deed,  and  dieth,  his  wife  shall  be  endowed "[. 

(Doct.  &  Stud.  TJ  ERE  Littleton  describeth  what  a  freehold  in  law  is,  for  he 
(ai  Bract  li  4  ^^^  spoke  before  in  many  places  of  freeholds  in  deed.     This 

f.  206.  236.  Bracton  calleth  [a]  civilem  et  naturalem  possessionem  sen  seisi- 

Britton,  fol.  S3.  Qiani.     The  naturall  seisin  is  the  freehold  in  deed,  and  the  civil 

X'^lf 'yki?-  the  freehold  in  law  (1). 

Sect.  680.  J-t 

*  ent  added  in  L.  and  M.  and  Roh.       f  <£'c.  added  in  L.  and  M.  and  Roh. 

(A)  /.  e.  who  disseised  the  heir  of  the  original  disseisor,  as  it  seems. 

(1)  It  may  not,  perhaps,  be  improper  in  this  place,  to  attempt  a  short  expla- 
nation of  some  words  familiar  both  in  the  ancient  and  modern  law. 

Seisin,  is  a  technical  term  denoting  the  completion  of  that  investiture  by 
which  the  tenant  was  admitted  into  the  tenure,  and  without  which  no  freehold 
could  be  constituted  or  pass.     It  is  a  word  common  as  well  to  the  French  as  to 

the 


I 


L.  3.  C.  8.  Sect.  448.      Of  Releases.  [26G.  b. 

If  a  man  Icvie  a  fine  to  a  man  snr  covnsance  de  droit  conic  ceo  ^o  e.  3.  20. 

qtte  il  ad  de  son  done,  or  a  fine  sin-  conusance  de  droit  tanfuni ;  lO  H.  6.  14. 

these  be  feoffments  of  record,  and  the  couusee  hath  a  freehold  i"J^-  3.  78. 

in  law  in  him  before  hee  entreth  (2).  7^  i^''   \'2^  ^^  ^ 

Upon   (Mo.  141.)"  ' 

the  English  law.  It  is  either  in  deed,  which  is,  when  the  person  has  the  actual 
seisin  or  possession ;  or  in  kw,.  when  after  a  descent  the  person,  on  whom  the 
lands  descend,  has  not  actually  entered,  and  the  possession  continues  vacant, 
not  being  usurped  by  another.  AVheu  lands  of  inheritance  are  carved  into  dif- 
ferent estates,  the  tenant  of  the  freehold  in  possession,  and  the  persons  in 
remainder  or  reversion,  are  equally  in  the  seisin  of  the  fee.  But,  in  opposi- 
tion to  what  may  be  termed  the  expectant  natui'e  of  the  seisin  of  those  in 
remainder  or  reversion,  the  tenant  in  possession  is  said  to  have  the  acfnal  seisin 
of  the  lands.  The  fee  is  entrusted  to  him.  By  any  act  which  amounts  to  a 
disafl&rmance  by  him  of  the  title  of  those  in  the  reversion,  he  forfeits  his  estate, 
and  any  act  of  a  stranger  which  disturbs  his  estate  is  a  disturbance  of  the 
whole  fee. 

Disseisin  seems  to  imjily  the  turning  the  tenant  out  of  his  fee,  and  usurping 
bis  place  and  relation.  It  has  been  observed  in  a  preceding  note,  that  persons, 
to  avail  themselves  of  the  remedy  by  assise,  frequently  supposed  or  admitted 
themselves  to  be  disseised,  when  they  were  not ;  and  that  this  was  called  dis- 
seisin hy  election,  in  opposition  to  an  actual  disseisin.  To  constitute  an  actual 
disseisin,  it  was  necessary  that  the  disseisor  had  not  a  right  of  entry  j  (or,  to 
use  the  old  law  expression,  that  this  entry  was  not  congeable ;)  that  the  person 
disseised  was,  at  the  time  of  the  disseisin,  in  the  actual  possession  of  the  lands ; 
that  the  disseisor  expelled  him  from  them  by  some  degree  of  constraint  or 
force ;  and  that  he  substituted  himself  to  be  tenant  to  the  lord.  But,  how 
this  substitution  was  effected,  it  is  difiicult,  perhaps  impossible,  now  to  dis- 
cover. From  what  we  know  of  the  feudal  law,  it  does  not  appear  how  a 
disseisin  could  be  effected  without  the  consent  or  connivance  of  the  lord ;  yet 
we  find  the  relationship  of  lord  and  tenant  remained  after  the  disseisin.  Thus, 
after  the  disseisin,  the  lord  might  release  the  rent  and  services  to  the  disseisee ; 
might  avow  upon  him  ;  and,  if  he  died,  his  heir  within  age,  the  lord  was  en- 
titled to  the  wardship  of  the  heir.  See  Litt.  Sect.  -154,  and  the  commentar}* 
upon  it.  It  should  be  ob.scrved,  that  a  disseisin  did  not  disturb  rent  issuing 
out  of  land,  the  seisin  of  the  rent  being  considered  as  a  separate  and  distinct 
seisin  from  that  of  the  land.     1  Rep.  13o.  b. 

A  discontinuance  is  the  effect  of  a  disseisin,  when,  on  certain  events,  the 
person  disseised  has  lost  his  right  of  entry  upon  the  disseisor,  and  can  only 
recover  by  action. 

The  word  freehold  is  now  generally  used  to  denote  an  estate  for  life,  in  oppo- 
sition to  an  estate  of  inheritance.  Perhaps,  in  the  old  law,  it  meant  rather  the 
latter  than  the  former.  It  is  known  that  fees  were  held  originally  at  the  will 
of  the  lord;  then  for  the  life  of  the  tenant;  that  afterwards  they  were  de- 
scendible to  some  particular  heirs  of  the  body  of  the  tenant ;  then  to  all  the 
heirs  of  his  body ;  and  that  in  succession  of  time  the  tenant  had  the  complete 
dominion  or  power  over  the  fee.  The  Avord  freehold  always  imported  the  whole 
estate  of  the  feudatory,  but  varied  as  that  varied.  Hence  we  find  the  freeholder 
represented  the  whole  fee,  did  the  duty  to  the  lord,  and  defended  the  possession 
against  strangers.  See  Feud.  L.  1.  tit.  25.  I.  2.  t.  1,  2.  Craig,  lib.  2.  tit.  2.  1 
Inst.  31.  153.  Litt.  Sect.  59.  279.  592.  Britton,  Cha.  32.  and  Sir  Ed.  Coke's 
Commentary  upon  those  Sections ;  and  the  case  of  Taylor  on  the  demise  of 
Atkyns  V.  Horde,  1  Burrow,  60.  and  post,  note  1,  to  page  830.  b. — [Note  217.] 

(2)  But  a  common  recovery  vests  no  freehold  in  deed  or  in  law  before  exe- 
cution served.     See  Moor,  141. — [Note  218.] 


266.  b.  267.  a.]  Of  Eeleases.     L.  3.  C.  8.  Sect.  449. 

11  H.  4.  01.  Upon  an  cscbange,  the  parties  have  neither  freehold  in  deed, 

21  H.  7.  12.         nor  in  law,  before  they  enter;  so  upon  a  partition  the  freehold 

is  not  removed  untill  an  entry. 
[ri]  32  E.  .3.  [i7]  If  tenant  for  life  by  the  agreement  of  him  in  the  reversion 

Barre,  262.  surrender  unto  him ;  he  in  the  reversion  hath  a  freehold  in  law 

1^  H^^i^'  ^^  ^^^  before  he  enter  [/(,].     Upon  a  livery  within  the  view  no 

Surrender,  10.     freehold  is  vested  before  an  entrie. 

[/i]  38  E.  3. 12.  If  a  man  doth  bargaine  and  sell  land  by  deed  indented  and 
inrolled,  the  freehold  in  law  doth  passe  presently.  And  so  when 
uses  are  raised  by  covenant  upon  good  consideration  (A). 

17  E.  3.  77.  If  ^  tenant  in  ?i  prsea'pe  being  seised  of  lands  in  fee,  confesse 

18  E.  4.  29.         himselfe  to  be  a  villeine  to  an  estranger,  and  to  hold  the  land 

in  villenage  of  him,  the  estranger  by  this  acknowledgement  is 
actually  seised  of  the  freehold  and  inheritance  without  any  entry. 
But  let  us  returne  to  Littleton. 

(A)  This  seems  to  impJy,  that  the  statttte  of  vses  gires  only  a  seisin  in  laic. —  On  this, 
see  Blach.  Comm.  vol.  2.  p.  338.  Archhold's  ed. ;  Bacon's  Reading  on  the  Statute  of 
Uses,  p.  48.  ed.  1806;  Mr.  Howe's  note  87.  ibid.  p.  146;  and  Green  v.  Wiseman,  Owen, 
86.  Perhaps  the  conclusion  from  these  authorities  is,  that,  before  entry,  the  cestuy  qu\ 
use  has  the  jwssessionfor  all  jnu-poses,  except  Trespass. 


(Pio.352.)  Sect  449. 

A  LSO,  in  some  cases  of  releases  of  all  the  right,  albeit  that  he  to  ivhom 
the  release  is  made  hath  nothing  in  the  freehold  in  deed  nor  in  laiv, 
yet  the  release  is  good  enough.  As  if  the  disseisor  letteth  the  land 
which  he  hath  hy  disseisin  to  another  for  terme  of  his  life,  saving  the 
reversion  to  him,  if  the  disseisee  or  his  heire  release  to  the  ropiy  -i 
disseisor  all  the  right,  ^c.  this  ]^^  release  is  good,  because  [^'"  ^_  'J 
hee  to  whom  the  release  is  made,  had  a  laiv  in  reversion  at 
the  time  of  the  release  made  (1). 

7  E.  4. 13.  TTERE  Littleton  addeth  a  limitation  to  the  next  precedent 

14  H.  4.  32.  b.      Xl  Section,  viz.  that  a  release  of  all  the  right  may  be  good  to 
41  E.  3.  17.         j^jjjj  j^  reversion,  albeit  he  hath  nothing  in  the  freehold,  because 

onsp'ii'u*      '         be  hath  an  estate  in  him. 

caseuit.  ^^^^^ 


(1)  Releases  may  enure  four  manner  of  ways. — 1st,  Per  mitter  le  droit, 
where  a  person  is  disseised,  and  he  releases  to  the  disseisor  his  heir  or  feoifee. 
— 2d.  Per  mitter  V estate,  viz.  when  two  or  more  are  seised  by  a  joint  title  of 
the  same  estate,  as  by  a  contract,  or  by  descent,  as  jointenants,  or  coparceners, 
and  one  of  them  releases  to  the  other,  this  enures  jier  mitter  V estate. — 3d,  Per 
Venlarger,  is  where  the  possession  and  inheritance  are  separated  for  a  particular 
time,  and  he  who  hath  the  reversion  or  inheritance,  releases  to  the  tenant  in 
possession  all  his  right  and  interest.  Such  release  is  said  to  enlarge  his  estate, 
and  to  be  equal  to  an  entry  and  feoffment,  and  to  amount  to  a  grant  and  attorn- 
ment.— 4:th,  Per  extinguishment,  where  the  releasee  cannot  have  the  i\imgper 
mitter  le  droit,  yet  the  release  shall  enure  by  way  of  extinguishment  against 
all  manner  of  persons;  as  when  the  lord  grants  the  seigniory  to  his  tenant, 
such  releases  absolutely  extinguish  the  rent,  <*i:c.  although  the  releasee  be  only 
tenant  for  life.     Ant.  193.  b.  and  see  post.  273.  b.— [Note  219.] 


I 


L.  3.  C.  8.  Sect.  450-51-52,  Of  Releases.  [267.  a.  267.  b. 

"All  the  right,  &c."  Or  title,  interest,  demand,  or  the  like  : 
and  so  it  is  if  he  in  the  reversion  hath  an  estate  for  life  or  in 
taile  in  reversion,  as  in  the  like  case  it  appeareth  in  the  next 
Section. 


Sect.  450. 

JN  the  same  manner  it  is,  where  a  lease  is  made  to  a  man  for  terme  of 
life,  the  remainder  to  another  for  terme  of  another  mans  life{^uv 
terme  de  *  auter  vie),  the  remainder  to  the  third  in  taile,  the  remainder 
to  the  fourth  in  fee,  if  a  stranger  which  hath  right  to  the  land  releaseth 
all  his  right  to  any  of  them  in  the  remainder,  such  release  is  good,  be- 
cause everie  of  them  hath  a  remainder  in  deed  vested  in  him. 

HERE  is  another  limitation,  that  a  release  is  good  to  him  in  7  E.  4. 13. 
the  remainder,  albeit  hee  hath  nothing  in  the  freehold  in  41  E.  3.  7^^ 
possession,  because  he  hath  an  estate  in  him,  as  hath  beene  ^g  ^  3*. 
said.     In  both  these  limitations  it  is  to  be  observed,  that  the  tit.  Entrie,  74. 
state  which  maketh  a  man  tenant  to  the  praecipe  is  said  to  be  ^j^^-j,^-^j.jg  ^ 
the  freehold,  as  here  the  state  of  tenant  for  life,  and  not  the  ;^.'n.'b.  207.  E. 
reversion  in  fee. 


Sect.  451. 

7?  UT  if  the  tenant  for  terme  of  life  he  disseised,  and  aftertvards  he 

that  hath  right  {the  possession  being  in  the  disseisor)  releaseth  to 

one  of  them  to  whom  the  remainder  was  made  all  his  right  (tout  f  son 

droit),  this  release  is  void,  because  he  had  not  J  a  remainder  in  deed  at 

the  time  of  the  release  made,  but  only  a  right  of  a  remainder. 

"  'DVT  only  a  right  of  a  remainder. '*  For  a  release  of  a  right 
-^  to  one  that  hath  but  a  bare  right  regularly  is  void ;  for, 
as  Littleton  hath  before  said,  he  to  whom  a  release  is  made  of  Vide  Sect.  454. 
a  bare  right  in  lands  and  tenements,  must  have  either  a  freehold 
in  deed  or  in  law  in  possession,  or  a  state  in  remainder  or  rever- 
sion in  fee  or  fee  taile,  or  for  life. 

r367.-|  ■  g^  Sect.  452. 

A  ND  note,  that  every  release  made  to  him  which  hath  a  reversion  or 
a  remainder  in  deed,  shall  serve  and  aid  him  who  hath  the  freehold^ 
as  well  as  him  to  whom  the  release  was  made,  if  the  tenant  hath  the  re- 
lease in  his  hand  4.  to  plead. 

Sect. 

*  auter  not  in  L.  and  M.  or  Roh.       J  in  him  added  in  L.  and  M.  and  Roh. 
nor  in  Camhr.  MSS.  I  to  plead  not  in  L.  and  M.  or  Roh. 

f  son — le,  L.  and  M.  and  Roh. 

Vol.  II.— 23 


267.  b.]  Of  Keleases.        L.  3.  C.  8.  Sect.  453. 


Sect.  453. 

TN  tJie  same  manner  f  it  is  ivhere  a  release  %  is  made  to  the  tenant  for 
life,  or  to  the  tenant  m  taile,  \\  this  shall  enure  to  them  in  the  rever- 
81071,  or  to  them  in  the  remainder,  as  well  as  to  the  tenant  of  the  free- 
hold, and  they  shall  have  as  great  advantage  of  this,  if  they  can  shew  it  §. 


B^ 


^Y  this  it  appeareth,  that  as  a  release  made  of  a  right  to  hiiu 
in  reversion  or  remainder,  shall  aid  and  benefit  him  that 
hath  the  particular  estate  for  yeares,  life,  or  estate  taile,  so  a 
release  of  a  right  made  to  a  particular  tenant  for  life,  or  in  taile, 
shall  aid  and  benefit  him  or  them  in  the  remainder. 

If  two  tenants  in  common  of  land  graunt  a  rent  charge  of  40.s\ 

(2  Roll.  Abr.414.  out  of  the  same  to  one  in  fee,  and  the  grantee  release  to  one  of 

2^gS^'i*g.\       them,  this  shall  extinguish  but  twentie  shillings,  for  that  the 

297.' a."  '      graunt  in  judgment  of  law  was  severall  (1).     So  it  is  if  two 

Ant.  147. b.  197.)  men  be  seised  of  severall  acres,  and  grant  a  rent  ut  supra.    But 

there  is  a  diversitie  betweene  severall  estates  in  severall  lands, 

and  severall  estates  in  one  land ;  for  if  one  be  tenant  for  life  of 

lands,  the  reversion  in  fee  over  to  another,  if  they  two  joyne  iu 

(1  Rep.  Mayoe's  a  grant  of  a  rent  out  of  the  lands,  if  the  grantee  releaseth  either 

^^^'^•)  to  him  in  the  reversion,  or  to  tenant  for  life,  the  whole  rent  is 

extinguished,  for  it   is  but  one  rent,  and  issueth  out  of  both 

estates,  and  so  note  the  diversitie  (2). 

35  H.  6.  8,  <'//"  the  tenant  hath  the  release  in  Ms  hand  to  j^l^ad."     And 

so  it  is  in  both  cases  :  for  albeit  he  in  the  reversion  or  remain- 
der is  a  stranger  to  the  deed,  when  the  release  is  made  to  the 
tenant,  and  the  tenant  for  life  or  in  taile  is  a  stranger  to  the 
deed,  when  the  release  is  made  to  him  in  reversion  or  remainder, 
yet  seeing  they  are  privies  in  estate,  none  of  them  in  pleading 
shall  take  benefit  thereof,  without  shewing  the  same  in  court, 
which  is  worthy  to  be  observed. 

(Ant.  2.32.  a.)  '^If  tliey  can  sheio  this."     The  one  cannot  plead  the  release 

Hob.  66.  made  to  the  other  without  shewing  of  it,  for  that  they  are  privie 

°  ■      •■'••'  in  estate,  as  hath  beene  said.    The  residue  of  these  two  Sections 
needs  no  explication. 

Sect. 

f  it  is  where  not  in  L.  and  M.  or  Roh.     1|  this  not  in  L.  and  M.  or  Eoh. 
i  is  not  in  L.  and  M.  or  Roh.  §  &c.  added  in  L.  and  M.  and  Eoh. 


(1)  If  they  grant  a  rent-charge  of  20s.  which  in  laic  amounts  to  a  rent- 
charge  of  40  s.  as  tico  grants,  for  otherivise  uon  est  casus.  When  two  tenants 
in  common  grant  a  rent,  that  is,  severed  estates  in  one  land,  and  yet  they  arc 
several  grarifs,  therefore  qvcere  of  this  diversity,  JPlo.  Que.  pi.  315.  contra. 
Lord  Xott.  MS.— [Note  220.] 

(2)  For  Flowd.  in  his  Quccre  315.  if  tenant  for  life  grants  rent,  and  the 
grantee  purchases  the  reversion,  the  rent  remains  during  the  life  of  the  taiant 
for  life.     Lord  Nott.  MS.— [Note  221.] 


L.  3.  C.  8.  Sect.  454.         Of  Releases.  [268.  a. 


[^f-] 


10°  Sect.  454. 


ALSO,  if  there  bee  lord  and  tenant,  and  the  tenant  be  disseised,  and 
the  lord  releaseth  to  the  disseisee  all  the  right  which  he  hath  iri  the 
seigniorie  or  in  the  land,  this  release  is  good,  and  the  seigniorie  is  ex- 
tinct ;  and  this  is  by  reason  of  the  privitie  which  is  betwcene  the  lord  and 
the  disseisee.  For  if  the  beasts  of  the  disseisee  be  taken,  and  of  them  the 
disseisee  sueth  a  replevin  against  the  lord,  he  shall  compell  the  lord  to 
avow  upon  him  :  for  f  he  avoiv  upon  the  disseisor  then  upon  the  matter 
shewn  the  avoiorie  shall  abate,  for  the  disseisee  is  tenant  to  him  in  right 
and  in  law  (1). 

HEREUPON  may  bee  collected  and  observed  two  diver- 
sities :  first,  betweene  a  seigniorie  or  rent  service,  and  a  rent 
charge :  for  a  seigniorie  or  rent  service  may  bee  released  and 
extinguished  to  him  that  hath  but  a  bare  right  in  the  land.  And 
the  reason  hereof  is,  in  respect  of  the  privitie  betweene  the  lord  (3  Rep.  35.  b.) 
and  the  tenant  in  right ;  for  he  is  not  only  as  tenant  to  the  avowrie, 
hni  if  hee  die,  his  heire  within  age,  hee  shall  bee  in  ward ;  and  if 
of  full  age,  hee  shall  pay  releefe ;  and  if  he  die  without  heire, 
the  land  shall  escheat.  But  there  is  no  such  privitie  in  case  of 
a  rent  charge,  for  there  the  charge  only  lieth  upon  the  land. 

The  second  diversitie  is  betweene  a  seigniorie  and  a  bare  right  y^j,  gggt.  451. 
to  land  ;  for  a  release  of  a  bare  right  to  land  to  one  that  hath  but 
a  bare  right  i-svoid,  as  hath  beene  said.      But  here  in  the  case  of 
our  author,  a  release  of  a  seigniorie  to  him  that  hath  but  a  right, 
is  good  to  extinguish  the  seigniorie.  ' 

Xota,  a  seigniorie,  rent,  or  right,  either  in  prcescnti,  or  in  Lib.  10.  fol.  48. 
faturu,  may  be  released  five  manner  of  wayes,  and  the  first  three  Lampet's  case., 
without  any  privitie.  First,  to  the  tenant  of  the  freehold  in  deed  (Post.  275. 
or  in  law.     Secondly,  to  him  in  remainder.     Thirdly,  to  him  in  I^^.A 
the  reversion.     The  other  two  in  respect  of  privitie  :  as,  first,  here 
the  lord  releaseth  his  seigniorie  to  the  tenant  being  disseised, 
having  but  a  right,  and  no  estate  at  all;  secondly,  in  respect 
of  the  privitie,  without  any  estate  or  right ;  as  by  the  demandant 
to  the  vouchee,  or  donor  to  the  donee,  after  the  donee  hath  dis- 
continued in  fee,  as  appcareth  hereafter  in  this  chapter.  Sect.  455. 

^'^  By  reason  of  the  privitie,  &c."  See  for  this  word  (jprivific). 
Sect.  461. 

"  He  shall  compdl  the  lord  to  avow  upon  him,  d'c."     This  is  20  11.  (>.  9.  b. 
regularly  true  ;  but  if  the  lord  hath  accepted  services  of  the  dis-  41  E.  3.  26. 
seisor,  then  tlie  disseisee  cannot  enforce  the  lord  to  avow  upon  o  p  4''[;  ^ 
him,  though  his  beasts  be  taken,  &c  (2). 

If 

(1)  Here  the  release  operates  by  way  of  extinguishment.    See  post.  279.  b.. 

(2)  But  the  opinion  of  the  48  E.  3.  9.  seems  to  be  contrary;  because,  when, 
the  tenant  pleads  the  disseisin,  to  compel  the  lord  to  avow  upon  him,  it  13' 
strange  that  the  lord,  by  his  own  act  of  acceptance,  should  maintain  his  avowry,, 
and  destroy  the  feudal  contract.     Gilb.  Ten.  64,  65. — [Note  222.] 


268.  a.  258.  b.]       Of  Eeleases.      L.  3.  C.  8.  Sect.  454. 


31  E.  1.  Discent, 
17.  26  E.  3.  72. 
4  H.  6.  21. 
F.  N.  B.  144.  b. 
[d]  7  E.  6.  tit. 
Escheat.  Br.  18. 


(9  Rep.  22. 
1  Roll.  Abr. 
316.  b.) 


[e]  7  H.  4.  17. 
3  R.  2.  Entr. 
cong.  38. 
2  H.  4.  8. 
6  H.  7.  9. 
Vide  Sect.  656. 


[/]  21  H.  8. 
cap.  19. 
(Hob.  242.) 


Lib.  9.  fol.  136. 
Ascougli's  case. 


27  H.  8.  fol.  4. 
32  H.  8.  cap.  2. 
Lib.  9.  fol.  36. 
Bucknal's  case. 


34  H.  8.  Avow- 
rie.     Br.  113. 
27  H.  8.  4<fe 
20.  Bucknal's 
case,  ubi  supra. 


Lib.  9.  fol.  22. 

in  case  cl'avow- 

rie. 

44  E.  3. 

11  H.  7. 

21  H.  7. 

34  II.  6. 

16  E.  4.  10. 

6  R.  2.  Res- 

cous,  11. 

(J.nt.  161.) 


20. 
4. 

40. 

18. 


If  a  man  hath  title  to  have  a  writ  of  escheat,  if  he  accept  ho- 
mage or  fealtie  of  the  tenant,  he  is  barred  of  his  writ  of  escheat ; 
but  if  he  accept  rent  of  the  tenant,  that  is  no  bar  to  him,  for  it 
may  be  received  by  the  hands  of  a  baylife.  [cQ  But  some  doe 
hold,  that  if  there  be  lord  and  tenant,  and  the  tenant  be  disseised, 
and  the  disseisee  die  without  heire,  the  lord  accepts  rent  by  the 
hands  of  the  disseisor,  this  is  no  barre  to  him.  Contrarie  it  is,  if 
he  avow  for  the  rent  in  court  of  record,  or  if  he  take  a  corporall 
service,  as  homage  or  fealtie,  for  the  disseisor  is  in  by  wrong ; 
but  if  the  lord  accept  the  rent  by  the  hands  of  the  heire  of  the 
disseisor,  or  of  his  feoffee,  because  they  be  in  by  title, 
this  shall  barre  him  of  his  escheat,  which  is  toDCrbe  r968.n 
understood  of  a  discent  or  feoffment,  after  the  title  of  |_  b.  J 
escheat  accrued  ;  [c]  for  if  the  disseisor  make  a  feoff- 
ment in  foe,  or  die  seised,  and  after  the  disseisee  die  without 
heire,  then  there  is  no  escheat  at  all,  because  the  lord  hath  a 
tenant  in  by  title.  And  when  Littleton  wrote,  the  disseisee  in  the 
case  here  put,  should  have  compelled  the  lord  to  have  avowed 
upon  him,  as  Littleton  holdeth.  But  now  this  is  altered  by  a 
latter  statute  of  [/]  21  H.  8.  For  whereas  by  fines,  recoveries, 
grants,  and  secret  feoffments,  &c.  made  by  tenants  to  persons 
unknowne,  the  lords  were  put  from  knowledge  of  their  tenants, 
upon  whom  by  order  of  law  they  should  make  their  avowrie,  &c. 
it  is  by  that  statute  enacted,  that  if  the  lord  shall  distreine  upon 
the  lands  and  tenements  holden,  &c.  that  he  may  avow,  &c.  upon 
the  same  lands,  &c.  as  in  lands,  &c.  within  his  fee  or  seigniorie, 
&c.  without  naming  of  any  person  certaine,  and  without  making 
avowrie  upon  a  person  certaine.  Upon  which  statute  these  foure 
points  are  to  be  observed.  First,  that  the  lord  hath  still  election 
either  to  avow  according  to  the  common  law,  by  force  of  the 
statute,  by  reason  of  this  word  {may).  Secondly,  albeit  the  pur- 
view of  the  act  be  generall,  yet  all  necessary  incidents  are  to  be 
supplyed,  and  the  scope  and  end  of  the  act  to  be  taken ;  and 
therefore,  though  he  need  not  to  make  his  avowrie  upon  any 
person  certaine,  yet  he  must  alleage  seisin  by  the  hands  of  some 
tenant  in  certaine,  within  forty  yeares.  Thirdly,  that  if  the  avowrie 
be  made  according  to  the  statute,  everie  plaintife  in  the  replevin, 
or  second  deliverance,  be  he  termor  or  other,  may  have  everie 
answer  to  the  avowrie  that  is  sufficient ;  and  also  have  aid,  and 
every  other  advantage  in  law  (disclaimer  only  except)  ;  for  dis- 
claime  he  cannot,  because  in  that  case  the  avowrie  is  made  upon 
no  certaine  person.  Fourthly,  where  the  words  of  the  statute  be, 
if  the  lord  distreine  upon  the  lands  and  tenements  holden,  yet  if 
the  lord  come  to  distreine,  and  the  tenant  enchase  his  beasts 
which  were  within  the  view  out  of  the  land  holden,  and  there 
the  lord  distreine,  albeit  the  distresse  be  taken  out  of  his  fee  and 
seigniorie  in  that  case,  yet  is  it  within  the  said  statute :  for  in 
judgment  of  law  the  distresse  is  lawfull,  and  as  taken  within  his 
fee  and  seigniorie;  and  this  statute  being  made  to  suppre.sse 
fraud,  is  to  be  taken  by  equitie  (1). 

Sect. 


^1)  See  the  following  page,     Gilb.  Distr.  189.     Lord  Raym.  257. 


L.  3.  C.  8.  Sect.  4:55-56.   Of  Releases.    [268.  b.  269.  a. 


Sect.  4:55. 


A 


LSO,  if  land  be  given  to  a  man  in  taile,  reserving  to  the  donor  and 
to  his  heires  a  certaine  rent,  if  the  donee  be  disseised,  and  after  the 
donor  release  to  the  donee  and  his  heires  all  the  right  tvhich  hee  hath  in 
the  la7id,  and  after  the  donee  enter  into  the  land  upon  the  disseisor  ;  in  tfiis 
case  the  rent  is  gone,  for  that  the  disseisee  at  the  time  of  the  release  made, 
was  tenant  iii  right  and  in  laiv  to  the  donor,  and  the  avoivrie  of  fine  (2) 
force  ought  to  bee  made  upon  him  by  the  donor  for  the  rent  behinde  (et 
avowrie  a  fine  force  covient  de  estre  fait  sur  luy  pur  le  donor  pur  le  rent 
aderere),  ^c.  But  yet  nothing  of  the  right  of  the  lands,  (scilicet)  of  the 
reversion,  shall  passe  by  such  release  (Mes  uneore  rien  de  droit  de  terres, 
scilicet,  de  le  droit  de  le  reversion,  *  passera  par  tiel  release),  for  that  the 
donee  to  whom  the  release  is  made,  then  had  nothing  in  the  land  but  onely 
a  right,  a7id  so  the  right  of  the  land  could  not  f  then  passe  to  the  donee 
by  such  release. 


[969. "I     Je@°""   TF  the  doneehe  disseised  &c."  This  is  evident  Vide  Sect.  454. 
a.     J  by  that  which  hath  beene  said.     But  admit  (^^./nt  43 '" 

that  the  donee  maketh  a  feoffment  in  fee,  and  the  i4H.  4. 38. 
donor  release  unto  him  and  his  heires  all  the  right  in  the  land,  1|-  3.  fol.  29. 
this  shall  extinguish  the  rent,  because  the  lord  must  avow  upon    '  '    ' /. '  „  ,„ 

1  •  •If  1      p     rr  11  -1       Lamijet  s  case, 

hun,  and  yet  the  tenant  in  taile  alter  the  teoliment  hath  no  right  ubi  supra, 
in  the  land.    But  the  reason  is  in  respect  of  the  privity,  and  that  (Ant.  46.  Post, 
the  [??i]  donor  is  by  necessity  compellable  to  avow  upon  him  only ;  r^^n'^Q  ^  3  2e 
for  if  he  should  avow  upon   the  discontinuee,  then  it  should  4g  e.  3,  g.  {,. 
appeare  of  his  owne  shewing  that  the  reversion  whereunto  the  31  E.  .3.  Gard. 
rent  is   incident,  should  be  out  of  him,  and   consequently  the  }}^  ^  ^- J*-  ^• 
avowrie  should  abate  ;  and  so  was  it  [?(]  resolved  Trin.  18  EUz.  in  ^5  e.  4.  1:3. 
the  court  of  common  pleas  in  sir  Tliomas  ^Yiai's  case,  which  I  [)i]Trin.  is  EUz. 
heard  and  observed.     And  Littleton  saith  here,  that  in  case  of  the  ^'^  Thomas 
disseisin  of  fine  force,  the  avowrie  must  be  made  upon  the  donee,  communi  banco. 

"  Yet  notTiing  of  the  riijlit,  &c.  of  the  reversion,  &c."  Here  the 
diversitie  aforesaid  betweene  the  rent  service  and  a  bare  right 
to  the  land  appeareth. 


Sect.  4^56. 

TH  the  same  manner  it  is,  if  a  lease  be  made  to  one  for  terme  of  life 
(si  leas  soit  §  a  un  pur  tcrmc  de  vie),  reserving  to  the  lessor  and  to  his 
heires  a  certaine  rent,  if  the  lessee  be  disseised,  and  after  the  lessor  release 
to  the  lessee  and  to  his  heires  all  the  right  which  he  hath  in  the  land,  and 
after  the  lessee  entreth,  albeit  in  this  case  the  rent  is  extinct,  yet  nothing 
of  the  right  of  the  reversion  shall  passe,  causa  qua  supra. 

HEREBY 

*  adonques  ne  added  in  L.  and  M.         f  then  not  in  L.  and  M. 
and  Roh.  §  fait  added  in  L.  and  M.  and  Roh. 


(2)  That  is,  of  necessity. 


269.  a.  269.  b.]      Of  Releases.      L.  3.  G.  8.  Sect.  457. 

HEREBY  the  diversity  is  made   apparent  betweene   a  release 
of  a  rent  service  out  of  land,  and  a  release  of  right  to  land, 
in  this  section. 


Sect.  457. 

/>  TIT  if  there  he  very  lord  and  very  tenant,  and  the  tenant  maketh  a 
feoffment  in  fee,  the  which  feoffee  doth  never  become  tenant  to  the 
lord,  t  if  the  lord  release  to  the  feoffor  all  his  right,  ^c.  this  release  is  al- 
together void,  because  the  feoffor  hath  no  right  in  the  land,  and  he  is  not 
tenant  in  right  to  the  lord,  but  only  tenant  as  to  tnake  the  avowrie,  and 
hee  shall  never  compellthe  lord  to  avoiv  upon  him,  for  the  lord  shall  avow 
upon  the  feoffee  if  hee  tvilL 

"  TTERYlord  and  very  tenant."  This  is  to  he  understood  of 
a  lord  in  fee  simple,  and  of  a  tenant  of  like  estate. 
Vide  Ascough's  There  be  foure  manner  of  avowries  for  rents  and  services,  &c. 
case,  1.9.  f.  135,  ^^^^  ■\^  Super  verum  teneniem,  as  in  the  case  here  put.  2.  Stiper 
Vy  4*^  ^4.  ^'  ^'  verum  tencntem  in  forma  prsedidd,  as  where  a  lease  for  life,  or  a 
\2  E.  4.  2.  gift  in   taile  bee  made,  the  remainder  in   fee.     3.  Upon  one  as 

2fi  H.  6.  -upon  his  tenant  by  the  mannor  omitting  {very)',  and  this  is  when 

'^l^^zT^2v'2b1.  ^^^  lo^'^  ^'^^^  *  particular  estate  in  the  seigniorie,  and 
b  H.'^T.ll.'''    "  so  shall  the  donor  fi@°  upon  the  donee,  or  lessorupon   rQGO.l 
7  E.  4.  24.  the  lessee.     4.  Sur  le  matter  en  la  terre,  as  within  his   L     '^-      J 

Tvrw^isi  ^^^  ^^^  seigniorie.     As  where  the  tenant  by  knights 

(o'llTp.  1.35.  h.  service  maketh  a  lease  for  life  reserving  a  rent,  and  die  bis  heire 
21  H.  8.  e.  19.)  within  age,  the  gardeine  shall  avow  upon  the  lessee,  scilicet, 
47  E.  3.  fol.  super  mater  iam  prsedictam  in  terris  et  tenement  is  prsedictis  ut  in- 
sVh.^B.  23.  fra  feodum  et  dominium  smtm.  Now  by  the  statute  the  very 
(Doc.  Pla.  53.)  lord  may  avow,  as  in  lands  within  his  fee  and  seigniorie,  without 
21  JI-|- ^^P- 1^-  avowing  upon  any  person  in  certaine  (1). 

(Post.  3  0.)  B-ere  appeareth  the  diversity  betweene  a  tenant  in  taile,  and  a 

tenant  in  fee  simple ;  for  albeit  tenant  in  taile  make  a  feoffment 
in  fee,  yet  the  right  of  the  entaile  remaines,  and  shall  descend  to 
the  issue  in  taile.  But  when  the  tenant  in  fee  simple  make  a 
feoffment  in  fee,  no  right  at  all  remaines  of  his  estate,  but  the 
whole  is  transfen-ed  to  the  feoffee. 

Also  the  lord  is  not  compellable  in  that  case  to  avow  upon 
the  feoffor  ;  but  if  he  will,  as  Littleton  here  saith,  he  may  avow 
on  the  feoffee;  but  so  it  is  not,  as  hath  beene  said,  in  case  of 
tenant  in  taile. 
'  Note  a  diversity  betweene  actions  and  acts  which  concerne  the 

right,  and  actions  and  acts  which  concerne  the  possession  only. 
For  a  writ  of  custoraes  and  services  lieth  not  against  the  feoffor, 
(Doc.  Pla.  321.)  nor  a  release  to  him  shall  extinguish  the  seigniorie.     So  if  a 

rescous 

f  <tc.  added  in  L.  and  M.  and  Roh. 


(1)  On  the  continuance  of  the  right  of  the  entail  in  the  tenant  in  tail  after  a 
feoffment  made  by  him,  see  the  case  of  Lord  Slieffeild  v.  Ratcliffe,  Hob.  334, 
and  see  Buncombe  v.  Wingfield,  ibid.  254. — [Note  223.] 


L.  3.  C.  8.  Sect.  457.         Of  Eeleases.  [269.  b. 

rescous  be  made,  an  assise  shall  not  lie  against  the  feoffor,  and 
him  that  made  the  rescous,  because  the  feoffee  is  tenant,  and  in 
assise,  the  surplusage  incroached  shall  be  avoided.  For  these 
actions  and  acts  concerne  the  right;  but  of  a  seisin  and  an 
avowrie  which  concerne  the  possession,  it  is  otherwise.  And  if 
the  lord  release  to  the  feoffor,  this  is  good  betweene  them,  as  to 
the  possession  and  discharge  of  the  arrearages,  but  the  feoffee 
shall  not  take  benefit  of  it,  for  that,  as  hath  beene  said,  it  ex- 
tendeth  not  to  the  right.  But  the  feoffor  shall  plead  a  release 
to  the  feoffee,  for  thereby  the  seigniorie  is  extinct;  as  if  lessee 
for  life  doth  waste,  and  grant  over  his  estate,  and  the  lessor  re- 
lease to  the  grantee,  in  an  action  of  waste  against  the  lessee,  he 
shall  plead  the  release,  and  yet  he  hath  nothing  in  the  land. 
And  so  in  waste  shall  tenant  in  dower  or  by  the  courtesie  in  the 
like  case,  and  the  vouchee,  and  the  tenant  in  a  prmipe  after  a 
feoffment  made.     And  so  in  a  contra  formam  cotlationis. 

"  The  which  feoffee  doth  never  become  tenant."    Nota  here  an  4  E.  3.  22. 
excellent  point  of  "learning,  viz.  if  there  be  lord  and  tenant,  and  ^  ^"^'j^ 
the  rent  is  behind  by  divers  yeares,  and  the  tenant  make  a  feoff-  29  H.'s.  tit. 
ment  in  fee,  if  the  lord  accept  the  service  or  rent  of  the  feoffee  Avowrie.  _ 
due  in  his  time,  he  shall  lose  the  arrerages  due  in  the  time  of  ^^-  g^^gg-  ^• 
the  feoffor;  for  after  such  acceptance  he  shall  not  avow  upon  the  Penna'nt's'case. 
feoffor,  nor  upon  the  feoffee  for  the  arrerages  incurred  in  the  7  H.  4. 14. 
time  of  the  feoffor.     But  in  that  case  if  the  feoffor  dieth,  albeit  'i^^W^ 
the  lord  accept  the  rent  or  service  by  the  hand  of  the  feoffee  due  3^  jj^  g" 
in  his  time,  he  shall  not  lose  the  arrerages,  for  now  the  law  com-  29  H.  8. 
pelleth  him  to  avow  upon  the  feoffee  (2J,  and  that  which  the  law  ^^'o^"'^; 
compelleth  him  unto  shall  not  prejudice  him.  ^      ep.  o  . 

So  it  is,  and  for  the  same  reason,  if  there  be  lord,  mesne,  and 
tenant,  and  the  rent  due  by  the  mesne  is  behinde,  and  after  the 
tenant  fore-judge  the  mesne,  and  the  lord  receive  the  services  of 
the  mesne  which  issue  out  of  the  tenancie,  he  shall  not  be  barred 
of  the  arrerages  which  issued  out  of  the  mesnalty;  and  so  if 
the  rent  be  behinde,  and  the  tenant  dieth,  the  acceptance  of  the 
services  by  the  hand  of  the  heire  shall  not  barre  him  of  the 
arrerages;  for  in  these  cases,  albeit  the  persons  be  altered,  yet 
the  lord  doth  accept  the  services  of  him  which  only  ought  to 
doe  them  (3). 

But  as  long  as  the  feoffor  liveth  the  lord  shall  not  bo  com-  4  e.  3.  22. 
polled  to  avow  upon  the  feoffee,  unlessc  he  giveth  the  lord  no-  47  E.  3.  4. 
tice,  and  tender  unto  him  all  the  arrerages. 

But  now  by  the  statute  the  lord  may  avow  upon  the  lands  so 
holden,  as  in  lands  within  his  fee  or  seigniory,  without  naming 
of  any  person  ccrtaine  to  bee  tenant  of  the  same,  and  without  ^1  H.  8.  cap.  91. 
makin^  of  any  avowrie  upon  any  person  certainc,  as  hath  beene 
said,  which  hath  much  altered  the  common  law  in  the  cases 
abovesaid,  for  the  benefit  and  safety  of  the  lord. 

But  yet  these  cases  are  necessary ^to  be  knowne  (for  which 
purpose  I  have  added  them),  for  that  the  lord  may  avow  still  at 
the  common  law  if  he  will. 

Sect. 


(2)  For  the  lord  could  not  introduce  the  heir  into  the  feud  contrary  to  the 
express  alienation  of  the  ancestor.     Gilb.  Ten.  67. — [Note  224.] 

(3)  By  acceptance  of  rent  from  the  assignee,  the  lessor  loses  his  action  of 
debt  ao-ainst  the  first  lessee,  but  he  may  still  maintain  an  action  of  covenant 
against  him.     1  Saund.  240,  241.     2  Saund.  302.— [Note  225.] 


270.  a.J  Of  Releases.     L.  3.  C.  8.  Sect.  458,  459. 

n^^  Sect.  458.  rQVO.i 


[' 


a. 


/^  THER  WISE  it  is  tvhere  the  very  tenant  is  disseised,  as  in  the  case 
aforesaid  ;  for  if  the  very  tenant  who  is  disseised,  hold  of  the  lord 
by  knights  service  and  dieth  {his  service  being  within  age,)  the  lord  shall 
have  and  seize  the  wardship  of  the  heire,  and  so  shall  he  not  have  the 
ward  of  the  feoffor  that  made  the  feoffment  in  fee,  ^c.  so  there  is  a 
great  diversitie  between  these  two  cases. 

12  H.  4. 13.  Of  this  sufficient  hath  beene  said  before. 

36  E.  3.  tit. 

Gard.  10.     6  H.  7.  9.    37  H.  6.  1.    32  H.  6.  27.     7  E.  6.  tit.  Gard.  Br.     (Post.  345.  b.) 


Sect.  459. 

ALSO,  if  a  man  letteth  to  another  his  land  for  terme  ofyeares,  if  the 
lessor  release  to  the  lessee  all  his  right,  ^c.  before  that  the  lessee  had 
entred  into  the  same  land  by  force  of  the  same  lease,  such  release  is  void, 
for  that  the  lessee  had  not  possession  in  the  land  at  the  time  of  the  re- 
lease made,  but  only  a  right  to  have  the  same  land  by  force  of  the  lease. 
But  if  the  lessee  enter  into  the  land,  and  hath  possession  of  it  by  force 
of  the  said  lease,  tlien  such  release  made  to  him  by  the  feoffor,  or  by  his 
heire,  is  *  sufficient  to  him  by  reason  of  the  privitie  which  by  force  of 
the  lease  is  betiveen  them,  ^c.  (1) 

49  E.  3.  28.  "  J) E FORE  that  the  lessee  had  entred,  &c."     For  before  entry 

^7  w'  fi'  fq  ^^^  lessee  hath  but  interesse  termini,  an  interest  of  a  terme, 

22  E.  4.*  37!         ^^'^  ^^  possession,  and  therefore  a  release  which  enures  by  way 

4  H.  7. 10.  of  enlarging  of  an  estate  cannot  worke  without  a  possession  (2), 

15  H.  7.  14.         for  before  possession  there  is  no  reversion;  and  yet  if  a  tenant 

for  twenty  yeares  in  possession  make  a  lease  to  B.  for  five  yeares, 

and  B.  enter,  a  release  to  the  first  lessee  is  good,  for  he  had  an 

actuall  possession,  and  the  possession  of  his  lessee  is  his  posses- 

22  E.  4.  Sur-       sion.     And  so  it  is  if  a  man  make  a  lease  for  yeares,  the  remaiu- 

rp°*^l''^27^     1      ^^^  ^'^^  yeares,  and  the  first  lessee  doth  enter,  a  release  to  him  in 

the  remainder  for  yeares  is  good  to  enlarge  his  estate  (3). 

Buli 
*  good  and,  added  in  L.  and  M.  and  Roh. 


(1)  On  releases  which  operate  by  enlargement,  see  post.  273.  a. 

(2)  But  this  must  be  understood  of  a  lease  at  common  law;  for  if  it  be  so 
framed  as  to  be  a  bargain  and  sale  under  the  statute,  the  possession  is  immedi- 
ately executed  in  the  lessee,  so  that  no  entry  is  necessary.  See  the  note  page 
271.  b.  and  Cro.  Car.  110.     2  Ventris,  35.— [Note  22G.] 

(3)  By  this  passage  it  appears,  that  what  sir  Edward  Coke  observes  a  few 
lines  before,  that  a  release  which  enures  by  enlargement  cannot  worke  without 
a  poBsessioU;  must  be  understood  to  mean,  not  that  an  actual  estate  in  posses- 
sion 


L.  3.  C.  a  Sect.  459.     Of  Releases.  [270.  a.  270.  b. 

But  if  a  man  make  a  lease  for  yeares  to  beginne  presently, 
reserving  a  rent,  if  before  the  lessee  doth  enter  the  lessor  re- 
leaseth  all  the  right  that  hee  hath  in  the  land,  albeit  this  release 
cannot  enlarge  his  estate,  yet  it  shall  in  respect  of  the  privity  (Ant.  46.  b.) 
extinguish  the  rent.  And  so  it  is  if  a  lease  be  made  to  beginne 
at  Michaelmas,  reserving  a  rent,  and  before  the  day  the  lessor 
release  all  the  right  that  he   hath  in  the  land,  this 

t 370.1  cannot  enure  to  jB®"" enlarge  the  estate  but  to  extin- 
b.     J  guish  the  rent  in  respect  of  the  privity,  as  it  was  re- 
solved [61  in  the  exchequer,  which  I  observed.  [?-]  Micb.  39  A 

■-  40  Eliz.  in 

Scaccario,  betwecno  sir  Henrie  Woodhouse  and  sir  AVillium  Paston. 

A  man  granteth  the  next  avoidance  of  an  advowson  to  two, 
the  one  of  them  may  before  the  church  become  void  release  to 
the  other;  for  although  the  grantor  cannot  release  to  them  to 
increase  their  estate,  because  their  interest  is  future,  and  not  in 
possession,  yet  one  of  them  to  extinguish  his  interest  may  release 
to  the  other  in  respect  of  the  privity.     But  after  the  church 
become  void,  then  such  a  release  is  void,  because  then  it  is  (as 
it  were)  but  a  thing  in  action.    And  this  was  resolved  [c]  by  the  [,•]  Pascb. 
whole  court  of  common  pleas,  which   I  myselfe  heard  and  ob-  38  Eliz.  in  quare 
served.     And  by  consequent  in  the  case  of  Littleton,  if  a  lease  ^j^J^^'^^.^^  ^gjig^ 
for  yeares  be  made   to  two,  albeit  the   lessor  before  they  enter  I'evesque  de 
cannot  release  to  them  to  enlarge  their  estate,  yet  one  of  them  Norwich  in 
may  before  entry  release  to  the  other.  cummuni  banco. 

"Bill  only  a  right,  &c."     Which  is  not  so  to  be  understood  pi.  Com.  423. 
that  he  hath  but  a  naked  right,  for  then  he  could  not  grant  it 
over;  but  seeing  he  hath  interesse  termini,  before  entrie,  he  may 
grant  it  over,  albeit  for  want  of  an  actuall  possession,  he  is  not 
capable  of  a  release  to  enlarge  his  estate. 

^^ But  if  the  lessee  enter  into  the  land,  t&c."  This  is  evident. 
And  herein  note  a  diversity  betweene  a  lease  for  life,  and  for 
yeares,  for  before  the  lessee  for  yeares  enter,  a  release  cannot  be 
made  unto  him  :  but  if  a  man  make  a  lease  for  life,  the  remainder 
for  life,  and  the  first  lessee  dieth,  a  release  to  him  in  the  re- 
mainder and  to  his  heires  is  good  before  hee  doth  enter  to  en- 
large his  estate,  for  that  he  hath  an  estate  of  a  freehold  in  law 
in  him,  which  may  be  enlarged  by  release  before  entrie. 

And  where  our  author  speaketh  only  of  a  lessee  for  yeares,  25  E.  3.  53. 
the  same  law  it  is  of  a  tenant  by  statute  merchant  or  staple,  or  31  E.  i. 
tenant  by  elegit,  or  the  like.  3i'a™'pl\3 

Sect. 


sion  is  necessary,  but  that  a  vested  interest  suflfices,  for  such  a  release  to  ope- 
rate upon.  By  comparing  this  with  what  is  said  in  note  1.  271.  b.  of  the  ope- 
ration of  a  lease  and  release,  it  will  be  seen,  that  not  only  estates  in  possession, 
but  estates  in  remainder  and  reversion,  and  all  other  incorporeal  hereditaments, 
may  be  effectually  granted  and  conveyed  by  lease  and  release :  but  it  is  an  in- 
accuracy to  say,  that  the  releasee,  in  these  cases,  is  in  the  actual  possession  of 
the  hereditaments;  the  right  expression  is,  that  they  are  actually  vested  in  him, 
by  virtue  of  the  lease  of  possession,  and  the  statute. — [Note  227.] 


270.  b.]  Of  Releases.    L.  3.  C.  8.  Sect.  460. 


Sect.  460. 

TN  the  same  manner  it  is,  as  it  seemeth,  where  a  lease  is  made  to  a 
man  to  hold  of  the  lessor  at  his  will,  hi/  force  of  whieh  lease  the  lessee 
hath  possession:  if  the  lessor  in  this  case  make  a  release  to  the  lessee  of 
all  his  right,  ^-c.  tins  release  is  good  enough  for  the  privifie  which  is 
hettveene  them  ;  for  it  shall  be  in  vaine  to  make  an  estate  hy  a  liverie  of 
seisin  to  another,  where  he  hath  possession  of  the  same  land  hy  the  lease 
of  the  same  man  before,  ^e. 

But  the  eontrarie  is  holden,  Pascli.  2  E.  4,  hy  all  the  justices*. 

21  H.  6.  37.  "D^'  these  two  Sections  is  to  be  observed  a  diversity  between 

2  E.  4.  6^b.  _L)  a  tenant  at  will,  and  a  tenant  at  sufferance;  for  a  release  to 

3  E  4  16  ^  tenant  at  will  is  good,  because  betweene  them  there  is  a  pos- 
29  H.  6.  session  with  a  privity :  but  a  release  to  a  tenant  at  sufferance  is 
Release,  6.  void,  because  he  hath  a  possession  without  privity.  As  if  lessee 
'''^Sid^l'^s'  ^*^^  yeares  hold  over  his  ternie,  &c.  a  release  to  him  is  void,  for 
Ant.  47.  "  that  there  is  no  privity  betweene  them;  and  so  are  the  books 
Cro.  Jac.  1C9.)  that  speake  of  this  matter  to  be  understood  (1). 

"But 
*  This  paragraph  is  not  in  L.  and  M.  or  Roh. 


(1)  A  tenant  at  will  is  he  who  enters  and  enjoys  the  land  by  the  express  or 
implied  consent  of  the  owner,  without  there  being  any  obligation  on  the  part 
either  of  the  lessor  or  lessee  to  continue  it  for  any  certain  or  determinate  term. 
A  tenant  by  sufferance  is  he  who,  having  entered  and  obtained  possession  by 
title,  continues  the  possession,  after  his  title  is  ended,  by  the  laches  of  the 
lessor.  The  former  is  in  by  the  consent  of  the  owner  of  the  lands;  this  creates 
a  privity  between  them.  A  tenant  by  sufferance  is  in  only  by  the  laches  of 
the  owner;  so  that  there  is  no  privity  between  them.  Both  these  estates  differ 
from  that  of  a  tenant  from  year  to  year,  the  tenant  of  which  may  determine  it 
at  the  end  of  any  year;  but  after  a  new  year  is  begun,  the  tenure  cannot  be 
determined  either  by  the  lessor  or  lessee  till  the  end  of  the  year.  See  1  Lord 
Raymond,  707,  708.  2  Salk.  413.  3  Salk.  222.  If  a  person  holds  by  lease 
and  the  term  expires,  the  lease  itself  is  notice  of  the  expiration  of  the  term' 
and  the  lessor  may  enter  on  the  lessee  without  further  notice,  unless  for  double' 
rent,  under  the  4  Geo.  2.  c.  28.  sect.  1.  in  which  case  there  must  be  a  previous 
demand  in  writing.  Where  the  tenant  holds  by  will,  the  modern  determina- 
tions are,  that  there  must  be  a  previous  notice;  but  this  notice  varies  according' 
to  the  custom  of  the  place,  and  the  nature  of  the  hereditaments  in  lease. 

The  editor  has  been  favoured  with  the  following  note  of  an  important  deter- 
mination on  this  point.  York,  Lammas  Assizes  1773.  Richard  Roe  ex  d. 
Chr.  Brown  against  Ann  "Wilkinson.  p]jectment  for  two  messuages  and  other 
premises  at  Xorth  Cowton.  Thomas  Beaver  proved  that  he,  by  the  lessor  of 
the  plaintiff's  order,  delivered  a  notice  in  writing  to  the  defendant,  on  the 
10th  of  February,  which  notice  he  received  from  lessor  of  plaintiff.  The  notice 
was  as  follows:  '<10th  February  1773.  Ann  Wilkinson,  Take  notice,  that 
'•you  are  to  quit  and  yield  up  the  possession  of  the  dwelling-house,  stable, 
"shop,  and  coal-house,  with  their  appurtenances,  situate  at  Xorth  Cowton, 
"  which  you  rent  under  me,  on  the  13th  day  of  May  next.  Yours,  Ch.  Brown." 
Thomas  Masterman  deposed,  that  for  30  years  he  had  been  bailiff  at  North 

Allerton, 


L.  3.  C.  8.  Sect.  461.     Of  Releases.         r270.  b.  271.  a. 

"  But  the  contrary  is  holden,  &c."  This  is  of  a  new  addition, 
and  the  booke  here  cited  ill  understood,  for  it  is  to  be  under- 
stood of  a  tenant  at  suiFerance. 


[^I^-]  jg^Sect.  461. 

J)  UT  tvhere  a  man  of  his  otvne  head  occupieth  lands  or  tenements  at 
the  will  of  him  which  hath  the  freehold  (Mes  lou  home  de  sa  teste 
demesne  occupia  terres  ou  tenements  a  la  volunt  celuy  que  ad  f  le  frank- 
tenement),  and  such  occupier  claimeth  nothing  hut  at  will,  ^c.  if  hee 
which  hath  the  freehold  will  release  all  his  right  to  the  occupier,  ^c.  this 
release  is  void,  because  there  is  no  pirivitie  hetweene  them  hj  the  lease 
made  to  the  occupier,  nor  by  other  manner,  ^-c. 

"  f}^  ^^^  ^"'■"^  Amf?."     Hee  doth  not  say  of  his  oicne  head  J^^'^^J^'^f^f- 
cntreth,  &c.  so  as  this  is  to  bee  understood  of  a  tenant  at  ^.g'"  .^nt.  57. 
suiferance,  viz.  wiiere  a  man   commeth  to  the  possession  first  Cro.  Car.  303.) 
lawfully,  and  holdeth  over. 

For 

-\  ent  added  in  L.  and  M.  and  Roll. 

Allerton,  the  market  town  for  Cowton ;  that  it  was  the  usage  to  give  half  a 
year's  notice  in  case  of  lands,  but  had  known  a  great  many  given  to  quit  houses 
at  North  Allerton  at  Candlemas  for  May  Day,  and  submitted  to.  This  place 
is  about  eight  miles  from  North  Allerton.  Verdict  for  plaintiff,  subject  to 
judge  Grould's  opinion.  The  question  was.  This  being  the  case  of  a  house  and 
buildings  only,  under  lOZ.  per  annum,  viz.  only  5/.  5s.  per  annum,  and  the 
year  expiring  at  May  Day,  old  style,  Whether  in  an  holding  from  year  to  year, 
the  above  notice  was  sufficient,  or  whether  it  ought  not  to  have  been  given  half 
a  year  before  the  expiration  of  the  year?  22d  January  1774.  Before  judge 
(jould  at  his  chambers,  Mr.  Davenport  for  plaintiff  argued,  that  a  week's  notice 
to  a  tenant  at  will  was  sufficient;  that  the  defendant  was  tenant  at  will;  that 
the  custom  in  London  required  only  three  months  notice  for  tenements  under 
10^.  a  year ;  that  the  same  custom  was  in  general  observed  every  where ;  and 
it  was  reasonable  and  agreeable  to  late  determinations ;  that  the  custom  of  the 
country  was  in  this  case  proved  in  favour  of  plaintiff,  and  cited  the  following 
cases;  13  Hen.  S.'fo.  16. — 59.  Year  Book.  Brook,  title  Leases,  pi.  53.  Keil- 
way,  163.  Co.  Lit.  68.  Sec  title  Tenant  at  Will,  55.  a.  69.  Allen,  4.  Sir  Thomas 
Bowes'scase.  2  Lord  llaym.  1008.  Title  ?;.  Grevett,  2  .Jones,  5.  Timberlyv. 
Grrobbam— How.  2  Salk.  413,  414.  3  Burrow,  1603.  Timmins  v.  llowlinson. 
11  Viner,  406.  tit.  Estate.  Mr.  Leo  for  defendant,  argued,  there  was  not,  ac- 
cording to  modern  determinations,  any  such  estate  as  an  estate  at  will  ;  every 
tenant  being  a  tenant  for  a  year  or  more  ;  and  that  the  rent  was  immaterial  and 
custom  local ;  and  expatiated  on  the  hardship  of  poor  tenants,  if  turned  out  on 
short  notice;  and  cited  Brook,  tit.  Leases,  fo.  61.  Yelvcrton,  73,  74.  In  April 
following,  Mr.  justice  Clould  delivered  his  opinion  to  Mr.  Davenport  thus; — 
'<  I  have  consulted  all  the  other  judges,  and  we  are  all  of  opinion  that  six 
"months  notice  to  quit  is  necessary  in  all  cases,  whether  of  houses  or  lands, 
"  under  or  above  5A  per  annum,  ?//(/es.s  where  there  is  a  particular  custom  to 
"the  contrary;  and  the  custom  of  North  xVUcrton  was  too  far  distant  from 
"  North  Cowton  to  affect  the  inhabitants  there,  unless  proved  to  extend  to  that 
"place  also."     Judgment  for  defendant. — [Note  228.] 


271.  a.]  Of  Keleases.    L.  3.  C.  8.  Sect.  462-63. 

[m]  Temps  H.  8.  [m]  For  if  a  man  entreth  into  land  of  his  owne  wrong,  and 
*'':  '^1°^^  ^'r  take  the  profits,  his  words  to  hold  it  at  the  will  of  the  owner 
2  E.  4.  38.      '     cannot  qualifie  his  wrong,  but  heeis  a  disseisor  (1),  and  then  the 

18  E. 4.  25.         release  to  him  is  good;  or  if  the   owner  consented  thereunto, 

19  f'  I'  A^^'  <?«  ^^^^  ^®  ^^  ^  tenant  at  will,  and  that  way  also  the  release  is  good. 
11 E.  3.  ibid!  sr!  ^^^  there  is  a  diversitie  when  one  commeth  to  a  particular  estate 
12  Ass.  21.  in  land  by  the  act  of  the  partie,  and  when  by  act  in  law ;  for  if 
9^  A  3.  Ass.  92.  ^]jg  gardein  hold  over,  he  is  an  abator,  because  his  interest  came 
34  Ass!  lo!  by  act  in  law  (2). 

10  E.  3.  41,     8  E.  3.  63.     (1  Roll.  Abr.  662.     Post.  277.)     Vide  2  part  of  the 
Institutes.     Marlb,  cap.  16.     10  E.  4.  9,  10.     (1  Roll.  Abr.  861.     Ant.  57.  b.) 

OldN.  B.  117.  ^' No  privitie."     Privitie  is  a  word   common  as  well  to  the 

fo^^23  Walker's  English  as  to  the  French,  and  in  the  understanding  of  the  com- 
case. '  Lib.  4.       mon  law  is  fourefold. 

fol.  123, 124.  1.  As  to  privies  in  estate,  whereof  Littleton  here  speaketh;  as 

\  ide  Sect.  454.    ijet^eene  the  donor  and  donee,  lessor  and  lessee,  which  privitie 

is  ever  immediate. 
(8  Rep.  42.  b.)         2.  Privies  in  bloud;  as  the  heir  to  the  ancestor,  or  betweene 

coparceners,  &c. 
(Ant.  242.  a.)  3.  Privities  in  representation;  as  executors, &c.  to  the  testator. 

And  fourthly,  privies  in   tenure,  as  the  lord  and  tenant,  &c. 

which  may  be  reduced  to  two  generall  heads,  privies  in  deed, 

and  privies  in  law. 

Sect.  462,  463. 

ALSO,  if  a  man  enfeoffe  other  men  of  his  land  upon  confidence^  and 
to  the  intent  to  performe  his  last  will,  and  the  feoffor  occupieth  the 
same  land  at  the  will  of  his  feoffees,  and  after  the  feoffees  release  hy 
their  deed  to  their  feoffor  all  their  right,  ^c.  this  hath  heene  a  questio7i 
if  such  release  he  good  or  no.  And  some  have  said,  that  such  release 
is  void,  because  there  teas  no  privitie  hetiveene  the  feoffees  and  their 
feoffor,  insomuch  as  no  lease  was  made  after  such  feoffment  hy  the 
feoffees  to  the  feoffor,  to  hold  at  their  will:  and  some  have  said  the  con- 
trarie,  and  that  for  two  causes. 

Sect.  463. 

fyNE  is,  that  when  such  feoffment  is  made  upon  confidence  to  performe 

the  will  of  the  feoffor,  it  shall  hee  intended  hy  the  law,  that  the  feoffor 

ought  presently  to  occupie  the  land  at  the  will  of  his  feoffees  ;  and  so  there 

is 

(1)  This  is  to  be  understood  when  there  is  no  terme  of  years  in  the  land  ; 
but  if  there  be  a  terme  in  esse,  and  one  enters  claiming  the  term,  he  shall  not 
be  a  disseisor,  but  an  action  of  debt  or  waste  shall  be  against  him,  and  one  may 
be  executor  de  son  tort  of  a  term.     3  Lev.  35. — [Note  229.] 

(2)  P.  9  Car.  C.  B.  on  the  argument  of  the  case  of  Blundell  or  Baugli,  com- 
monly called  the  Earl  of  Nottingham' s  case  justice  Barclay  said,  that  he  whom. 
lord  Coke  calls  in  fhisjylace  an  abator,  must  he  taken  for  a  disseisor,  as  he  (A) 
had  actual p)Ossession  hy  the  possession  of  the  gttardian.  Lord  Nott.  MSS. — 
See  Cro.  Ca.  302.     Litt.  Rep.  372.     1  Vent.  55.  80.— [Note  230.] 

(A)  i.  e.  the  heir  in  ward.  * 


L.  3.  C.  8.  Sect.  463.      Of  Releases.         [271.  a.  271.  b. 

is  the  Wee  hinde  of  privitie  hetweene  them,  as  if  a  man  make  a  feoffment 
to  others,  and  they  immediately  upon  the  feoff ment  will  and  grant,  that 
their  feoffor  shall  occupy  the  land  at  their  will,  Sj-c. 

HERE  is  a  question  moved,  and  the  reasons  of  both  sides  12  E.  4. 12.  b. 
shewed,  and  as  it  hath  beene  observed,  the  latter  opinion  ^  H/7/25. 
is  the  better,  being  Littleton's  owne  opinion.  Vide  Sect.  302. 

176.  340. 
"7c  shall  he  intended  hy  the  laio,  that  thefeffor  ought  presently  ^  jj    •  ^.^j  "^j^ 
to  occupy  the  land  at  the  vnll  of  his  feoff ees."     For  intendments  timo. 
of  law  mentioned  by  our  author  see  the  Sections  in  the  maraent.  15  H.  7.  2.  b. 

•^  °  14  H.  8.  9.  a. 

Sect.  99,  100.  110.  367.  377.  393.  406.  440. 

Here  is  to  bee  observed  the  intendment  of  the  law,  that  when  a  3'' H.  6. 

feoflFment  is  made  to  a  future  use,  as  to  the  perform-  j" ^^7^2.  b. 

tQTl.l  ance  of  his  last  will,  the  0^  feoifees  shall  be  seised  37  IL  e'.  36. 
b.         to  the  use  of  the  feoffor  and  of  his  heires  in  the  meane  n  H.  4.52. 
-■   ^.  7  H.  4.  22. 

Dier.     (6  Rep.  18.  a.)     (Ant.  111.  112.  a.)     (2  Rep.  58.) 

IpscB  etenim  leges  cupiunt  nt  jure  regantur. 

And  reason  would  that  seeing  the  feoffment  is  made  without  eon-  (i  Roll.  Abr. 
sideration,  and  the   feoffor  hath   not  disposed  of  the  profits  in  ^  '    ^gg*    \  ' 
the  meane  time,  that  by  construction  and  intendment  of  law  the  35  h.'  6. 
feoffor  ought  to  occupie  the  same  in  the  meane  time.     And  so  Subpena,  22. 
it  is  when  the  feoffor  disposeth  the  profits  for  a  particular  time  pg^gg^"''''' 
in  j^rcesenti,  the  use  of  the  inheritance  shall  be  to  the  feoffor 
and  his  heires,  as  a  thing  not  disposed  of;  wherein  it  is  to  be 
observed,  that  lands  and  tenements  conveyed  upon  confidences, 
uses,  and  trusts,  are  to  be  ruled  and  decided,  if  question  grow- 
eth  upon  the  confidences,  uses  or  trusts,  by  the  judges  of  the 
law ;  for  that  it  appoareth  by  this  and   the  next   Section,  they 
are  within  the  entendment  and  construction  of  the  lawes  of  the 
realme  (1). 

And  it  is  to  be  observed  (as  hath  beene  said)  that  there  is  a  (An*-  m-  ^• 
diversitie  betweene  a  feoffment  of  lands  at  this  day  upon  confi-        '  ^'' 
dence,  or  to  the  intent  to  performe  his  last  will,  and  a  feoffment 
to  the  use  of  such  person  and  persons,  and   of  such  estate  and 
estates,  as  hee  shall  appoint  by  his  last  will :  for,  in  the  first  case, 
the  land  passeth  by  the  will,  and  not  by  the  feoffment;  for  after 

the 

(1)  Many  references  have  been  made,  in  the  foregoing  notes,  to  this  part  of 
the  work,  for  some  observations  on  conveyances  at  common  law,  and  those 
which  derive  their  effect  from  the  statute  of  USES.  It  appeared  advisable 
to  collect  them  into  one  continued  note,  that  the  difference  between  the  two 
modes  of  conveyance  might  appear  in  a  stronger  light;  and  to  prevent  a  neces- 
.sity  of  frequently  repeating  those  general  principles  and  illustrations,  which 
otherwise  must  have  been  introduced,  on  every  occasion,  where  any  point  of 
this  nature  seemed  to  require  an  explanation.  On  the  same  ground,  it  seemed 
advisable  to  anticipate  some  passages  which  otherwise  would  have  had  a  place 
in  a  subsequent  part  of  the  notes. 

I.  Feoffments  and  grants  were  the  two  chief  modes  used  in  the  Common 
Law  for  transferring  property. 

I.  1.  The  most  comprehensive  definition  that  can  be  given  of  a  feoffment^ 
seems  to  be,  a  conveyance  of  corporeal  hereditaments,  by  delivery  of  the  pos- 
session upon,  or  within  view  of,  the  hereditaments  conveyed.     The  delivery  of 

the 


2n.  b.  272.  a.]  Of  Releases.  L.  3.  C.  8.  S.  463. 

the  feofFracnt  the  feoffor  was  seised  in  fee  simple,  as  he  was  be- 
fore ;  but  in  the  latter  case  the  will  pursuing  his  power  is  but  a 
direction  of  the  uses  of  the  feoffment,  and  the  estates  passe  by 
execution  of  the  uses,  which  were  raised  upon  the  feoffment  • 
Lib.  6.  fnl.  17,  but  in  both  cases  the  feoffees  are  seised  to  the  use  of  the  feoffor 
18.    Sir  Edward  ^^^^  j^jg  heires  in  the  mean  time :  and  all  this  and  much  more 

concerning  this  matter  hath  been  adjudged. 
Dillon  AFrayn's       Note,  uses  are  raised  either  by  transmutation  of  the  estate,  as 
Tf'^'^  j"  ^'  **^"      by  fine,  feoffment,  common  recoverie,  ttc.  or  out  of  the  state  of 
the  owner  of  the  land,  by  bargaine  and  sale  by  deed  indented 
and  inrolled,  or  by  covenant  upon  lawfuU  consideration,  whereof 
you  may  read  plentifully  in  my  Rejyorts. 
(2  Roll.  Abr.  A  feoffee  to  the  use  of  A.  and  his  heires  before  the  statute  of 

'''•'^-  l^^'^P-  27  //.  8.  for  money  bargaineth  and  selleth  the  land  to  C.  and  his 
Stat.  27. 11.  s!  heires,  who  hath  no  notice  of  the  former  use ;  yet  no  use  passeth 
c.  10.  by  his  bargaine  and  sale,  for  there  cannot  be  two  uses  in  esse, 

Plow.  348^  Qf  QQg  j^Q(j  i\^Q  same  land  ;  and  seeing  there  is  no  transmutation 

Sid  "^26  )  ''         of  possession  by  the  terre-tenant,  the  former  use  can  neither  be 
extinct  nor  altered.  And  if  there  could  be  two  uses  of 
one  and  the  same  land,  then  could  (Kf"  not  the  said   ['27Q.1 
statute  execute  either  of  them  for  the  uncertaintie.    L     ^*     J 
(Ant.  22.  b.)        But  if  A.  disseise  one  to  the  use  of  B.  and  A.  doth 

bargaine  and  sell  the  land  for  money  to  C,  C.  hath  an  use;  and 
here  be  two  uses  of  one  land,  but  of  severall  natures ;  the  one, 
viz.  u^on  the  bargaine  and  sale  to  be  executed  by  the  statute, 
and  the  other  not. 

But  since  Littleton  wrote,  all  uses  are  transferred  by  act  of 
[c]  27  H.  8.  Parliament  [c]  into  possession,  so  as  the  case  which  Littleton 
cap.  10.  ijere  puts  is  thereby  altogether  altered.     Yet  it  is  necessarie  to 

fl^'kT*^  ^^6  knowne,  what  the  common  law  was  before  the  making  of  the 

statute,  and  may  serve  for  the  knowledge  of  the  law  in  like  case. 


98.  a.) 


'■'■Immediately  itpon  the  feoffment."  Quae  incontinenti  jiunt 
in  esse  vident'. 

"  At  their  loill,  &c."  Here  is  implyed,  everie  tenancie  at  will 
is  at  the  will  of  both  parties,  as  before  in  his  proper  place  hath 
beene  shewed. 

the  possession  was  made  on,  or  within  view  of,  the  land,  that  the  other  tenants 
of  the  lord  might  be  witnesses  to  it.  No  charter  of  feoffment  was  necessary  : 
it  only  served  as  an  authentication  of  the  transaction ;  and,  when  it  was  used, 
the  lands  were  supposed  to  be  transferred,  not  by  the  charter  but  by  the 
livery,  which  it  authenticated.  Soon  after  the  Conquest,  or  perhaps  towards 
the  end  of  the  Saxon  government,"  all  estates  were  called  fees.  The  original 
and  proper  import  of  the  word  feoffment  is,  the  grant  of  a  fee.  It  came  after- 
wards to  signify,  a  grant,  with  livery  of  seisin,  of  a  free  inheritance  to  a  man 
and  his  heires,  more  respect  being  had  to  the  perpetuity,  than  the  feudal  tenure 
of  the  estate  granted.  In  early  times,  after  the  Conquest,  charters  of  feoff- 
ment were  various  in  point  of  form.  In  the  time  of  Edward  I.  they  began  to 
be  drawn  up  in  a  more  uniform  style.  The  more  ancient  of  them  generally 
run  with  the  words  dedi,  concessi,  or  donavi.  It  was  not  till  a  later  period,  that 
feoff avi  came  into  use.  The  more  ancient  feoffments  were  also  usually  made  in 
consideration  of,  or  for,  the  homage  or  service  of  the  feoffee,  and  to  hold  of 
the  feoffor  and  his  heirs.  But  after  the  statute  quia  emptorcs,  feoffments 
were  always  made,  to  hold  of  the  chief  lords  of  the  fee  without  the  words 
jpro  homagio  et  servitio.     Sir  Edward  Coke  mentions  in  page  G.  a.  that  there 

are 


L.  3.  C.  8.  Sect.  463.  Of  Eeleases.  [272.  a. 

are  eight  necessary  parts  in  a  feofFment.  The  fifth,  sixth,  and  seventh  of  these 
are  not  to  be  found  in  many  of  the  ancient  charters.  When  the  land  comprised 
in  the  feoffment  descended  from  the  ancestor,  or  by  usage  retained  the  pro- 
perty of  the  ancient  bock-land,  of  not  being  alienable  from  the  kindred,  the 
ancient  feoffments  were  often  expressed  to  be  made  with  the  assent  of  the 
feofiFor's  wife,  his  heir  or  his  heirs.  In  ancient  charters  there  was  inserted  a 
general  warranty:  in  that,  the  phrase  was  much  varied.  The  oath  of  the 
party  was  often  added  to  it,  and  sometimes  a  clause,  that  if  the  feoffor's  title 
was  evicted,  he  should  give  other  lands  of  equal  value.  Sometimes  these 
clauses  extended  to  a  second  eviction ;  and  sometimes  the  feoffor  obliged  him- 
self, if  he  should  make  default  in  warranting  the  lands  granted,  to  make  resti- 
tution to  the  feoffee.  The  proper  limitation  of  a  feoffment  is  to  a  man  and  his 
heirs ;  but  feoffments  were  often  made  of  conditional  fees  (or  of  estates  tail, 
as  they  are  now  called),  and  of  life  estates;  to  which  may  be  added,  feoffments 
of  estates  given  in  frankmarriage  and  frankalmoigne.  To  make  the  feoffment 
complete,  the  feoffor  used  to  give  the  feoffee  seisin  of  the  lands  :  this_  is  what 
the  feudists  called  investiture.  It  was  often  made  by  symbolical  tradition  :  but 
it  was  always  made  upon,  or  within  view  of,  the  lands.  When  the  kiug  madt- 
a  feoffment,  he  issued  his  writ  to  the  sheriff,  or  some  other  person,  to  deliver 
seisin  :  other  great  men  did  the  same.  This  gave  rise  to  powers  of  attorney. 
(See  the  preface  to  Mr.  Madox's  Fonmdare.) 

I.  2.  A  (/rant,  in  the  original  signification  of  the  word,  is  a  conveyance  or 
transfer  of  an  incorporeal  hereditament.  As  livery  of  seisin  could  not  be  had 
of  incorporeal  hereditaments,  the  transfer  was  always  made  by  writing,  in 
order  to  produce  that  notoriety  in  the  transfer  of  them,  which  was  produced 
in  the  transfer  of  corporeal  hereditaments,  by  delivery  of  the  possession.  But, 
except  that  a  feoffment  was  used  for  the  transfer  of  corporeal  hereditaments, 
and  a  grant  was  used  for  the  transfer  of  incorporeal  hereditaments,  a  feoffment 
and  a  grant  did  not  materially  differ. 

I.  3.  Such  was  the  original  distinction  between  a  feoffment  and  a"grant. 
]3ut,  from  this  real  difference  in  their  subject  matter,  a  difference  was  siqjposed 
to  exist  in  their  ojieratirm.  A  feoffment  visibly  operated  on  the  possession  ;  a 
grant  could  only  operate  on  the  riylu  of  the  party  conveying.  Now,  as  pos- 
session and  freehold  were  synonymous  terms,  no  person  being  considered  to 
have  the  legal  possession  of  the  lands  but  he  who  had  the  actual  freehold  of 
them,  a  conveyance  which  was  considered  as  transferring  the  possession,  must 
necessarily  be  considered  as  transferring  the  freehold;  or,  to  speak  more 
accurately,  as  transferring  the  whole  fee.  But  this  reasoning  could  not  apply 
to  grants;  their  essential  quality  being  that  of  transferring  things  which  did 
not  lie  in  possession ;  they  therefore  could  only  transfer  the  right ;  that  is,  could 
only  transfer  that  estate  which  the  party  had  a  right  to  convey.  It  is  in  this 
sense,  we  are  to  understand  the  expressions  which  frequently  occur  in  our  law- 
books, where  they  describe  a  feoffment  to  be  a  tortious,  and  a  grant  to  be  a 
rightful,  conveyance.  Thus,  from  a  difference  in  the  quality  of  the  heredita- 
ments conveyed  by  these  two  modes  of  conveyance,  a  difference  has  been  con- 
sidered to  exist  in  their  ojyeration.  A  great  part  of  Mr.  Knowler's  celebrated 
argument  in  the  case  of  Taylor  on  the  demise  of  Atkins  v.  Horde,  turns  on  thi.s 
distinction.  See  1  Burr.  92.  This  appears  to  have  been  the  outline  of  con- 
veyances at  the  common  law. 

II.  The  introduction  of  USES  produced  a  great  revolution  in  the  transfer 
and  modification  of  landed  property.  Without  entering  into  a  minute  discus- 
sion of  the  difference  between  uses  at  common  law,  and  uses  since  the  statute 
of  27  H.  8. — a  point,  particularly  well  explained  in  Mr.  Sanders's  Essay  on 
Uses  and  Trusts,  it  is  sufficient  to  state  the  following  circumstances.  Uses 
at  the  common  law  were,  in  most  respects,  what  trusts  are  now.  When  a 
feoffment  was  made  to  uses,  the  legal  estate  was  in  the  feoffee.     He  filled  the 

possession, 


272.  a.]  Of  Keleases.         L.  3.  C.  8.  Sect.  463. 

possession,  did  the  feudal  duties,  and  was,  in  the  eye  of  the  law,  the  tenant 
of  the  fee.  The  person  to  whose  use  he  was  seised,  called  by  the  law-writers 
the  cestui/  qiie  use,  had  the  beneficial  property  of  the  lands,  had  a  right  to  the 
profits,  and  a  right  to  call  upon  the  feoffee  to  convey  the  estate  to  him,  and  to 
defend  it  against  strangers.  This  right  at  first  depended  on  the  conscience 
of  tlie  feoffee  :  if  he  withheld  the  profits  from  the  cestu?/  que  use,  or  refused  to 
convey  the  estate  as  he  directed,  the  cestuy  que  tise  was  without  remedy.  To 
redress  this  grievance,  the  writ  of  subpoena  was  devised,  or  rather  adopted  from 
the  common-law  courts,  by  the  court  of  chancery,  to  oblige  the  feoffee  to  attend 
in  court,  and  disclose  his  trust,  and  then  the  court  compelled  him  to  execute 
it.  Thus  uses  were  established. — They  were  not  considered  as  issuing  out  of, 
or  annexed  to  the  land,  as  a  rent,  a  condition,  or  a  right  of  common ;  but  as  a 
trust  reposed  in  the  feoffee,  that  he  should  dispose  of  the  lands,  at  the  discre- 
tion of  tlie  cestui/  que  use,  permit  him  to  receive  the  rents,  and,  in  all  other 
respects,  to  have  the  beneficial  property  of  the  lands.  Yet  an  use,  though  con- 
sidered to  be  neither  issuing  out  of,  or  annexed  to  the  land,  was  considered  to 
be  collateral  to  it,  or  rather  as  collateral  to  the  possession  of  the  feoffees  in  it, 
and  of  those  claiming  that  possession  under  them.  Hence  the  disseisor,  abator, 
or  intruder  of  the  feoffee,  or  the  tenant  in  dower,  or  by  the  courtesy  of  a 
feoffee,  or  the  lord  entering  upon  the  possession  by  escheat,  were  not  seised  to 
an  use,  though  the  estates  in  their  hands  were  subject  to  rents,  commons  and 
conditions.  They  were  considered  as  coming  in  by  a  paramount  and  extra- 
neous title ;  or,  as  it  is  called  in  the  law,  in  the  post,  in  contradistinction  from 
those  who,  claiming  under  the  feoffee,  were  said  to  be  in  the  per.  Thus, 
between  the  feoffee  and  cestui/  que  use,  there  was  a  confidence  in  the  person 
and  privity  in  estate.  (See  Chudleigh's  case,  1  Rep.  120.  and  Burgess  and 
Wheate,  1  Bla.  123.)  But  this  was  only  between  the  feoffee  and  cestuy  que 
use.  To  all  other  persons  the  feoffee  was  as  much  the  real  owner  of  the  fee,  as 
if  he  did  not  hold  it  to  the  use  of  another.  He  performed  the  feudal  duties ; 
his  wife  was  entitled  to  dower :  his  infant  heir  was  in  wardship  to  the  lord ; 
and,  upon  his  attainder,  the  estate  was  forfeited.  To  remedy  these  inconve- 
niencies,  the  statute  of  27  H.  8.  was  passed,  by  which  the  possession  was 
divested,  out  of  the  persons  seised  to  the  use,  and  transferred  to  the  cestuys 
que  use.  For,  by  that  statute,  it  is  enacted,  that,  ''when  any  person  shall  be 
''  seised  of  any  lands  to  the  use,  confidence,  or  trust  of  any  other  person  or 
<•'  persons,  by  reason  of  any  bargain,  sale,  feoffment,  fine,  recovery,  contract, 
"  agreement,  will,  or  otherwise :  then,  and  in  every  such  case,  the  persons 
"  having  the  use,  confidence,  or  trust,  should  from  thenceforth  be  deemed  and 
"  adjudged  in  lawful  seisin,  estate,  and  possession  of  and  in  the  lands,  in  the 
"  same  quality,  manner,  and  form,  as  they  had  before  in  the  use." 

III.  There  seems  to  be  little  doubt,  that  the  intention  of  the  legislature,  in 
passing  this  act,  was  utterly  to  annihilate  the  existence  of  uses,  considered  as 
distinct  from  the  possession.  But  they  have  been  preserved  under  the  appel- 
lation of  Trusts.  The  courts  hesitated  much  before  they  allowed  them  under 
this  new  name.  On  the  one  hand,  it  had  clearly  been  the  intent  of  the  legis- 
lature to  destroy  them,  while  they  continued  uses  at  the  common  law ;  on  the 
other  hand,  motives  of  equity,  or  rather  of  compassion,  and  the  general  bent 
of  the  nation,  pleaded  strongly  in  their  favour.  The  latter  prevailed.  Thus 
(to  use  the  expression  of  lord  Hardwicke,  1  Atk.  591),  a  statute,  made  upon 
oreat  consideration,  and  introduced  in  a  solemn  and  pompous  manner,  has  had 
no  other  effect  than  to  add,  at  most,  three  words  to  a  conveyance.  Besides, 
this, — one  of  the  chief  inconveniences  produced  by  trusts,  was,  the  secret 
method  they  afforded  for  the  transfer  of  property.— The  statute  intended  to 
restore  the  notoriety  of  the  old  common-law  conveyances.  So  far  from 
effecting  it,  the  existence  and  transfer  of  fiduciary  or  trust  estates  has  conti- 
nued.   Secret  modes  of  transferring  the  possession  itself  have  been  discovered, 

and 


L.  3.  C.  8.  Sect.  463.      Of  Eeleases.  [272.  a. 

and  have  totally  superseded  that  notorious  and  public  mode  of  transferring 
property,  which  the  common  law  required,  and  the  statute  intended  to  restore; 
and  many  modifications  or  limitations  of  real  property  have  been  introduced  in 
consequence  of  the  statute  of  uses,  which  the  common  law  did  not  admit.  An 
attempt  will  be  made  to  give  the  reader  a  succinct  view  of  these  points,  by 
some  observations :  First,  on  the  nature  of  the  estates  of  the  feoffee  and  the 
cestuy  que  use,  since  the  statute  of  uses :  Secondly,  on  the  limitations  and 
modifications  of  landed  property  unknown  to  the  common  law,  which  have 
been  introduced  under  the  statute  of  uses :  Thirdly,  on  the  mode  by  which  con- 
veyances to  uses  operate  :  Fourthly,  on  the  doctrine  of  powers  deriving  their 
effect  from  the  statute  of  uses :  Fifthly,  on  uses  not  executed  by  the  statute. 
It  is  to  be  premised,  that  what  is  here  said  of  a  feoffee  to  uses,  is  equally  to  be 
understood  of  a  releasee,  conusee,  or  recoveror,  who  stands  seised  to  uses. 

IV.    As   TO   THE   ESTATES  OP  THE   FEOFEE  AND   THE   CESTUY  QUE    USE  ; 

the  statute  unites  the  possession  to  the  use,  so  that  the  very  instant  the  use  is 
raised,  the  possession  is  joined  to  it;  and  the  use  and  the  possession  are 
thereupon  immediately  consolidated,  and  become  convertible  terms.  Thus, 
had  all  uses  been  vested  either  in  possession  or  in  right,  no  estate  or  interest 
of  any  kind  could  have  been  left  in  the  feoffee.  But,  uses  are  frequently 
limited  in  contingency,  to  serve  which,  as  they  come  in  esse,  it  is  necessary 
that  there  should  be  a  seisin  somewhere.  When  this  case  was  first  considered 
by  the  lawyers,  it  was  found  difficult  to  discover  any  mode  of  reasoning,  con- 
sistent with  the  system  generally  received  on  the  doctrine  of  uses,  by  which 
that  seisin  could  be  supposed  to  exist  any  where ;  or  what  the  precise  nature  of 
it  was.  This  was  the  great  difficulty  in  Chudleigh's  case.  There,  the  following 
case  was  put :  Suppose  a  feoffment  is  made  to  the  use  of  A.  during  his  life,, 
remainder  to  the  use  of  his  sons  successively  in  tail,  and,  for  want  of  such  issue, 
to  the  use  of  B.  in  fee;  is  there  any,  and  what  seisin,  to  serve  the  uses  limited 
to  the  sons  of  AJ — In  whom,  does  that  seisin  exist? — and  how  does  it  operate? 
Upon  this  point  the  judges  seem,  by  the  accounts  which  have  come  to  us  of 
that  case,  particularly  sir  Edward  Coke's  and  lord  chief  justice  Popham's,  to 
have  held  very  different  opinions.  All  agreed,  that,  to  the  execution  of  an  use 
under  the  statute,  it  was  indispensably  necessary,  that  there  should  be  a  person 
seised  to  the  use ;  an  use  in  possession,  reversion,  or  remainder;  and  a  cestu}"- 
({ue  use  in  esse.  From  these  positions,  some  of  the  judges  in  that  case  inferred, 
that  the  whole  use  was  executed  in  A.  and  B.  in  a  manner  that  left  nothimj  of 
the  ancient  seisin  in  the  feoffees  ;  and  that  the  contingent  use,  when  it  came 
in  esse,  was  executed  out  of  the  first  livery,  and  the  original  estate  of  the 
feoffees.  Others  held,  that  an  arAual  estate  in  remainder  was  vested  in  the 
feoffees,  to  serve  the  contingent  uses  as  they  arose.  But  both  these  systems 
were  found  to  be  open  to  unanswerable  objections.  For,  with  respect  to  the 
first,  one  of  the  re»](uisites  indispensably  necessary  to  the  execution  of  an  use, 
under  the  statute,  is,  that  there  must  be  a  person  seised  to  the  use,  at  the  time 
of  the  execution  of  it.  Now,  if  the  whole  original  seisin  was  divested  out  of 
the  feoffees,  there  would  not,  when  the  son  of  A.  was  born,  be  any  person  seised 
to  his  use ; — or,  in  other  words,  there  could  be  no  seisin  to  that  use.  This, 
would  make  the  estates  limited  to  the  sons  of  A.  and  all  other  contingent  re- 
mainders, void  in  their  creation,  for  want  of  a  seisin  to  feed  them,  when  they 
come  in  esse.  With  respect  to  the  latter  system, — it  is  to  be  observed,  that, 
under  the  limitations  upon  which  the  case  arose,  A.  took  an  estate  for  life  in 
possession,  and  B.  took  an  estate  in  remainder  in  fee ; — and  that  previously 
to  the  birth  of  ^.'s  children,  there  was  no  use  vested  in  any  person,  which 
separated  those  two  estates.  Those  uses,  therefore,  were  commensurate  to  the 
whole  fee,  and  admitted  no  opening  for  any  intermediate  vested  use.  Besides, 
the  feoffor  neither  limited,  nor  intended  to  limit,  any  such  intermediate  use  to 
the  feoffees.     Thus,  on  the  one  hand,  the  objection  to  the  supposition,  that 

nothing 
YoL.  n.— 24 


272.  a. J  Of  Releases.        L.  3.  C.  8.  Sect.  463. 

nothing  of  the  old  seisin  remained  in  the  feoffees,  on  the  other,  the  objection 
to  the  supposition,  that  any  use  or  legal  estate  remained  in  them,  made  it 
difficult  to  conceive  what  estate  or  seisin  could  be  in  them,  to  serve  the  contin- 
gent use.  To  clear  up  this  difficulty  it  was  observed,  that  the  possession  was 
not  executed  by  the  statute,  but  in  the  manner,  and  to  the  extent,  in  which 
the  use  was  limited.  Now,  in  the  case  we  have  mentioned,  the  use  was  lim- 
ited, and  consequently  the  possession  executed,  to  A.  during  his  life,  remainder 
to  B.  in  fee,  but  subject  to  the  possihility  of  JL.'s  having  sons,  and  their 
becoming  entitled  to  the  use,  and  consequently  to  the  possession,  for  an  estate 
or  estates  in  tail.  Thus,  during  the  suspense  of  the  contingent  use,  the  feoffees 
had  a  possibility  of  possession,  untouched  and  unaffected  by  the  statute,  as 
there  was  no  use  in  esse  to  which  it  could  be  executed.  The  moment  the  use 
came  in  esse,  the  feoffees  would  be  entitled  at  common  law  to  the  possession, 
to  the  use,  or,  as  we  should  now  call  it,  in  trust  for  the  cestui/  que  use  ;  but  by 
the  operation  of  the  statute,  the  possession  is  instantaneously  divested  from 
the  feoffees,  and  executed  in  the  cestuy  que  use.  Thus,  by  supposing  a  possi- 
bility of  seisin,  but  no  actual  seisin  or  use  to  remain  in  the  feoffees  during  the 
suspense  of  the  contingent  use,  a  sufficient  seisin  is  provided  to  serve  the  con- 
tingent use  when  it  comes  in  esse,  without  interfering  with,  or  breaking  in 
upon,  the  legal  fee.  This  intricate  subject  has  been  elaborately  discussed  by 
3Ir.  Sanders,  in  his  Essay  on  Uses  and  Trusts;  by  Mr.  Sugden  in  his  Practical 
Treatise  of  Powers;  and  by  Mr.  Rowe  in  his  Scintilla  Juris.  A  short,  but 
masterly  view  of  it,  is  also  given  by  Lord  Chief  Baron  Gilbert,  in  his  Law 
of  Uses  and  Trusts.  An  attempt  to  explain  it,  may  be  found,  in  the  note  in 
page  291.  of  the  sixth  edition  of  Mr.  Fearne's  Essay  on  Contingent  Remain- 
ders. 

V.  With  respect  to  the  limitations  and   modifications  of  landed 

PROPERTY,    unknown   TO   THE   COMMON   LAW,    WHICH    HAVE     BEEN    INTRO- 
DUCED UNDER  THE  STATUTE  OF  USES  J  the  principal  of  these  are  known  by 
the  general  appellation  of  springing  or  secondary  uses.     No  estate  could  be 
limited  upon  or  after  a  fee,  though  it  were  a  base  or  a  qualified  fee^  nor  could 
a  fee  or  estate  of  freehold  be  made  to  cease  as  to  one  person,  and  to  vest  in 
another,  by  any  common-law  conveyance.     But,   there  are   instances  where, 
even  by  the  common  law,  these  secondary  estates  seem  to  have  been  allowed, 
when  limited,  or  rather  when  declared,  by  way  of  use.     See  Jenk.  Cent.  8. 
case  52.     After  the  statute  of  uses,  the  judges  seem  to  have  long  hesitated 
whether  they  should  receive  them.     In  Chudleigh's  case  it  was  strongly  con- 
tended, that  it  would  be  wrong  to  make  ''any  estate  of  freehold  and  inherit- 
"  ance  lawfully  vested,  to  cease  as  to  one,  and  to  vest  in  others  against  the 
"  rule  of  law,  and  that  no  estates  should  be  raised  by  way  of  use  but  those 
"  which  could  be  raised  by  livery  of  seisin  at  the  common  law."     The  courts, 
however,  admitted  them.     After  they  were  admitted,  it  was  found  necessary 
to  circumscribe  them  within  certain  bounds ;  because,  when  an  estate  in  fee 
.Simple  is  first  limited,  there  is  no  method  by  which  the  first  taker  can  bar  or 
destroy  the  secondary  estate,  as  it  is  not  affected  either  by  a  fine  or  common 
recovery.     It  is  now  settled,  that  when  an  estate  in  fee  simple  is  limited,  a 
subsequent  estate  may  be  limited  upon  it,  if  the  event  upon  which  it  is  to  take 
place  be  such,  that  if  it  do  happen  it  must  necessarily  happen  within  the  com- 
pass of  one  or  more  life  or  lives  in  being,  and  21  years  and  some  months  over. 
It  was  long  before  the  courts  agreed  upon  this  period.     In  Buckworth  and 
Thirkell,  1  Collect.  Jurid.  332.  lord  Mansfield  mentioned  that  it  was  not  settled 
till  his  time.     It  is  observed  in  note  5.  to  p.  20.  a.  "  that  this  period  was  not 
"  arbitrarily  prescribed  by  our  courts  of  justice  with  respect  to  the  limitation 
*'  of  personal  estates,  but  wisely  and  reasonably  adopted  in  analogy  to  the  cases 
"  of  freehold  and  inheritance,  which  cannot  be  limited  by  way  of  remainder, 
''  so  as  to  postpone  a  complete  bar  of  the  entail,  by  fine  or  recovery,  for  a 

"  lareer 


L.  3.  C.  8.  Sect.  403.       Of  Eeleases.  [272.  a. 

"  larger  space."  The  same  analogy  have  been  observed  with  respect  to  these 
secondary  fees,  when  limited  upon  an  estate  in  fee  simple.  But  the  reason 
which  induced  the  courts  to  adopt  this  analogy,  with  respect  to  these  estates 
when  limited  upon  an  estate  in  fee  simple  does  not  hold  when  they  are  limited 
upon  or  after  an  estate  in  tail;  because  when  they  are  limited  upon  or  after  an 
estate  in  tail,  the  tenant  in  tail,  by  suffering  a  common  recovery  before  the 
event  takes  place,  bars  or  defeats  the  secondary  estate,  and  acquires  the  fee 
simple  absolutely  discharged  from  it.  See  Page  v.  Haywood,  2  Salk.  570. 
Goodiar  v.  Clarke,  1  Sid.  102.  1  Lev.  35.  Hence,  if  the  secondary  estates 
we  are  speaking  of,  are  limited  upon  or  after  an  estate  in  tail,  they  may  be 
limited  generally,  without  restraining  or  confining  the  event  or  contingency 
upon  which  they  are  to  take  place,  to  any  period.  Thus,  if  an  estate  be  limited 
to  A.  and  his  heirs ;  and  if  B.  (a  person  in  esse)  dies  without  leaving  any  child 
of  his  body  living  at  the  time  of  his  decease  ;  or,  leaving  one  or  more  such 
child  or  children,  if  such  child  or  all  such  children  shall  die  before  any  of  them 
attain  the  age  of  21  years,  then  to  C.  and  his  heirs  ;  here,  the  limitation  to  C.  is 
limited  after  a  previous  limitation  in  fee  simple;  and  it  is  a  good  limitation, 
because  the  event  upon  which  it  is  to  take  place,  must,  if  it  do  take  place, 
necessarily  take  place  within  the  period  of  a  life  in  being,  and  21  years  and  a 
few  months.  But,  if  the  estate  were  limited  to  A.  and  his  heirs ;  and  after  the 
decease  of  B.  and  a  total  failure  of  heirs  or  heirs  male  of  the  body  of  B.  to  C. 
and  his  heirs;  here,  as  the  secondary  use  is  limited  after  a  previous  limitation 
in  fee  simple,  and  the  event  on  which  the  fee  limited  to  C.  is  to  take  place, 
is  not  such  as  must  necessarily  happen  within  the  period  we  are  speaking  of, 
(for  B.  may  have  issue,  and  that  issue  not  fail  till  many  years  after  the  expira- 
tion of  21  years  after  i?.'s  decease),  the  limitation  to  C.  and  his  heirs  is  void. 
On  the  other  hand,  if  the  estates  were  limited  to  A.  for  life,  then  to  trustees 
and  their  heirs  during  his  life,  for  preserving  contingent  remainders ;  then  to 
^.'s  first  and  other  sons  successively  in  tail  male ;  with  several  remainders  over ; 
with  a  proviso,  that  if  B.  dies,  and  there  should  be  a  total  failure  of  heirs  or 
heirs  male  of  his  body,  the  uses  limited  to  A.  and  his  sons  and  the  remainders 
over,  should  determine,  and  the  lands  remain  and  go  over  to  C.  and  his  heirs ; 
here,  the  limitation  to  C.  and  his  heirs  is  limited  so  as  to  depend  on  previous 
limitations  for  life,  or  in  tail;  and  the  event,  upon  which  it  is  to  take  effect, 
may  possibly  not  happen  till  after  a  period  of  one  or  more  life  or  lives  in  being, 
and  21  years.  But  so  far  as  it  is  limited  on  an  event  which  may  happen  during 
the  continuance  either  of  one  or  more  life  or  lives  in  being,  it  is  within  the 
bounds  we  have  mentioned;  and  so  far  as  it  is  limited  upon  an  event  which  may 
happen  during  the  continuance  of  the  estate  of  the  tenants  in  tail,  or  after 
them,  the  first  tenant  in  tail  in  possession  by  suffering  a  recovery,  before  the 
event  happens,  may  bar  the  limitations  over,  and  thereby  acquire  an  estate  in 
fee  simple ;  and  therefore  the  limitation  over  to  C.  and  his  heirs,  is  good. 

It  sometimes  happens,  that  between  the  estate  of  the  tenant  for  life,  and  the 
remainders  in  tail,  to  his  issue,  a  term  for  years  is  limited  to  trustees,  in  trust 
to  raise  sums  of  money,  for  portions  for  children,  or  for  other  purposes. — As  a 
term  for  years,  thus  interposed,  precedes  the  estates  tail,  it  is  not  subject  to  the 
operation  of  a  recovery  suffered  by  any  tenant  in  tail  under  them.  Now,  it 
mai/  be  considered,  that  the  trusts  of  such  a  term  are  subject  to  the  same  ob- 
servation. In  declaring  trusts  of  money  to  be  raised  under  such  a  term,  it  is, 
therefore,  advisable  not  to  protract  the  vesting  of  the  money  beyond  the 
boundary  prescribed  by  the  law  for  the  suspense  of  personal  estate.  Sec  lord 
Southampton  v.  marquis  of  Hertford,  2  Ves.  and  Beamcs,  54.  Thus,  where 
it  is  intended  to  limit  lands  to  the  issue  male  of  the  marriage,  in  strict  settle- 
ment, and  to  provide  portions  for  daughters,  on  the  fivilure  of  the  issue  male,  it 
is  advisable  to  limit,  for  that  purpose,  a  term  for  years  in  remainders  imme- 
diately expectant  on  the  failure  of  the  issuj  male  entitled  or  inhcriK.able  under 
the   limitations.     In  this  case  the  portions  may  be  properly  directed  to  be 

raised, 


272.  a.]  Of  Eeleases.        L.  3.  C.  8.  Sect.  463. 

raised,  in  the  event  of  there  being  a  general  failure  of  issue  male  of  the  marriage ; 
for  as  the  term  is  subject  to  the  recovery  of  any  preceding  tenant  in  tail,  the 
trusts  of  it  will  be  equally  subject  to  his  recovery.  But,  if  the  portions  are 
provided  under  a  term  preceding  the  estates  tail,  such  a  trust  would  exceed  the 
boundary  prescribed  by  law  for  such  trusts,  and  would,  on  that  account,  be 
void.  In  such  a  case,  therefore,  the  portions  of  the  daughters  should  be  made 
raiseable  on  the  event  of  there  being  no  son  of  the  marriage  who  should  attain 
the  age  of  21  years,  or,  who  should  die  under  that  age,  leaving  issue  male  of 
his  body,  living  at  the  time  of  his  decease,  or  born  in  due  time  after. 

VI.  With  respect  to  the  mode,  by  which  conveyances  to  uses  ope- 
rate.— It  is  to  be  observed  that  to  raise  an  use  under  the  statute,  the  posses- 
sion or  seisin  to  serve  the  use  must  be  in  some  person  distinct  from  the  ceatu)/ 
que  use;  as  the  statute  requires  that  the  person  seised  to  the  use,  and  the  per- 
son to  whom  the  use  is  limited,  should  be  different  persons ;  so  that,  if  the 
possession  is  conveyed,  and  the  use  limited  to  the  same  person,  at  least  if  the 
use  is  limited  in  fee  simple,  that  is  not  an  use  executed  by  the  statute,  but 
the  party  is  in  by  the  common  law.  For  the  statute  of  uses  mentions  those 
cases  only,  where  "  any  person  or  persons  stand  seised  to  the  use  of  any  other 
"  person  or  persons."  Thus,  in  the  case  of  Jenkins  v.  Young,  Cro.  Car.  231. 
245.  lands  were  given  to  two,  habendum  to  the  use  of  them  and  the  heirs  of 
their  two  bodies  :  It  was  argued,  that  the  estate  out  of  which  the  use  should 
rise,  was  but  for  their  lives,  and  that  therefore,  on  the  death  of  the  cestwjs  que 
vie,  the  use  limited  upon  their  estate  was  determined  :  but  the  court  held,  that, 
where  an  estate  is  limited  to  one,  and  the  use  to  a  stranger,  the  use  should  not 
be  more  than  the  estate,  out  of  which  it  was  derived  j  but  that,  when  the 
limitation  is  to  two,  habendum  to  the  use  of  them  and  the  heirs  of  their  bodies, 
it  was  no  limitation  of  the  use,  nor  was  the  use  to  be  executed  by  the  statute. 
So  in  Gilb.  Rep.  p.  17,  it  is  expressly  said,  that  if  a  fine  be  levied  to  a  man  and 
his  heires,  to  the  use  of  him  and  his  heirs,  he  shall  take  by  the  common  law,  and 
not  by  way  of  use.  And  see  Dyer,  186.  and  Ant.  22.  b.  and  Bac.  Uses  ed.  1785, 
p.  63.  Com.  313.  Skin.  209.  On  this  ground,  it  has  been  contended,  that,  if 
lands  are  conveyed  to  A.  and  his  heirs,  to  such  uses  as  A.  shall  appoint;  and, 
ia  default  of  appointment,  to  the  use  of  himself,  his  heirs  and  assigns — the 
power  of  appointment  is  void  ;  but  that, — if  lands  are  conveyed  to  B.  and  his 
heirs,  to  such  uses  as  A.  shall  appoint,  and,  in  default  of  appointment,  to  the 
use  of  A.  his  heires  and  assigns, — the  power  of  appointment  is  good. 

In  all  limitations  of  uses  now,  the  possession  or  seisin  on  which  the  use  is 
declared,  must  either  remain  in  the  party,  or  be  transferred  to  some  third  per- 
son. This  is  the  meaning  of  those  passages  in  the  books,  where  it  is  said, 
that  uses  are  raised  either  by  tranwiutation  of  the  possession,  or  without  such 
transmutation.  A  bargain  and  sale,  and  a  covenant  to  stand  seised,  operate 
on  the  possession  of  the  bargainor  or  covenantor.  A  feoffment,  fine,  and  com- 
mon recovery,  operate  on  the  possession  of  the  feoffee,  conusee,  or  recoveror. 
A  lease  and  release  has  a  mixt  operation ;  the  lease  having  the  operation  of, 
and  being  in  fact,  a  bargain  and  sale  under  the  statute,  and  the  estate  of  the 
releasee  being  extended  or  enlarged  to  an  estate  of  inheritance  to  the  operation 
of  the  release  at  the  common  law. 

VI.  1.  For  viithresipoct  to  a  bargain  and  sale,  and  a  covenant  to  stand  seised;  a 

bargain  and  sale  is  considered  as  a  real  contract,  whereby  the  bargainor  for  some 
pecuniary  consideration  bargains  and  sells,  and  contracts  to  convey  the  lands  to 
the  bargainee.  A  covenant  to  stand  seised  to  uses,  is  where  a  man  covenants  to 
stand  seised  of  them  to  the  use  of  his  wife,  his  child,  or  kinsman. _  But  it  is 
to  be  observed,  that  the  words  bargain  and  sell,  are  not  appropriated  to  the 
former,  nor  the  words  covenant  to  stand  seised,  appropriated  to  the  latter  of 
those  conveyances.  If  a  person  for  a  pecuniary  consideration  covenants  to 
stand  seised  to  the  use  of  the  purchaser,  it  is  a  bargain  and  sale,  and  if  enrolled, 

is 


L.  3.  C.  8.  Sect.  463.  Of  Keleases.  [272.  a. 

is  valid  and  effectual,  as  a  bargain  and  sale  under  the  statute  of  uses,  to  convey 
the  estate  to  the  purchaser.  In  the  same  manner,  if  a  person  for  natural  love 
and  affection  bargains  and  sells  his  lauds  to  the  use  of  his  wife,  it  is  a  covenant 
to  stand  seised,  and  as  such  without  enrolment,  vests  the  estate  in  the  wife. 
7  Ptep.  40.  b.  2  Inst.  672.  1  Leo.  25.  1  Vent.  187.  1  Mod.  175.  2  Lev.  10. 
In  the  case  of  a  bargain  and  sale,  the  bargainor  stands  seised  to  the  use  of  the 
bargainee;  in  the  case  of  a  covenant  to  stand  seised,  the  covenantor  stands 
seised  to  the  use  of  the  parties  intended  to  be  benefited.  In  both,  the  pos- 
session or  seisin  remains  in  the  party;  and  the  statute  draws  it  from  them, 
and  executes  it  in  the  cestuys  que  use. 

VI.  2.  With  respect  to  a  feoffment,  fine,  and  common  recovery  ;  the  transfer 
or  transmutation  of  the  possession  from  the  feoffor,  conusor,  and  recoveree  to 
the  feoffee,  conusee,  or  recoveror,  is  effected  solely  by  the  operation  of  these 
conveyances  or  assurances  at  the  common  law;  and  if  the  use  is  declared  to  the 
feoffee,  conusee,  or  recoveror,  in  fee  simple,  the  conveyance  is  completed  at 
the  common  law,  in  the  same  manner  as  if  the  statute  of  uses  had  never  pass- 
ed. It  is  only  when  the  use  is  declared  to  a  third  person,  that  the  statute  has 
any  operation ;  and  then,  by  the  operation  of  the  statute,  the  possession  pre- 
viously transferred  or  transmuted  to  the  feoffee,  conusee,  or  recoveror,  by  the 
operation  of  the  feoffment,  fine,  and  common  recovery,  at  the  common  law,  is 
divested  from  the  feoffee,  conusee,  or  recoveror,  and  vested  in  the  cestuys  cjiie 
use  by  the  statute. 

As  to  the  conveyance  by  lease  and  release :  The  form  of  that  conveyance  is 
originally  derived  to  us  from  the  common  law,  and  it  is  necessary  to  distinguish 
in  what  respect  it  operates  as  a  common-law  conveyance,  and  in  what  it  ope- 
rates under  the  statute  of  uses.  At  the  common  law,  where  the  usual  mode  of 
conveyance  was  by  feoffment  with  livery  of  seisin,  if  there  was  a  tenant  in 
possession,  so  that  livery  could  not  be  made,  the  reversion  was  granted,  and 
the  tenant  attorned  to  the  reversioner.  As  by  this  mode  the  reversion  or 
remainder  of  an  estate  might  be  conveyed  without  livery,  when  it  depended  on 
an  estate  previously  existing,  it  was  natural  to  proceed  one  step  farther,  and  to 
create  a  particular  estate  for  the  express  and  sole  purpose  of  conveying  the 
reversion ;  and  then,  by  a  surrender  or  release,  either  of  the  particular  estate 
to  the  reversioner,  or  of"  the  reversioner  to  the  particular  tenant,  the  whole  fee 
vested  in  the  surrenderee  or  releasee.  It  was  afterwards  observed,  that  there 
was  no  necessity  to  grant  the  reversion  to  a  stranger;  and  that  if  a  particular 
estate  was  made  to  the  person  to  whom  it  was  proposed  to  convey  the  fee, 
the  reversion  might  be  immediately  released  to  him ;  which  release,  operating 
by  way  of  enlargement,  would  give  the  releasee  the  fee.  In  all  these  cases, 
the  particular  estate  was  only  an  estate  for  years ;  for  at  common  law,  the 
ceremony  of  livery  of  seisin  is  as  necessary  to  create  an  estate  of  freehold, 
as  it  is  to  create  an  estate  of  inheritance.  Still  an  actual  entry  would  be 
necessary  on  the  part  of  the  particular  tenant ;  for,  without  actual  possession, 
the  lessee  is  not  capable  of  a  release,  operating  by  way  of  enlargement.  But 
this  necessity  of  entry  for  the  purpose  of  obtaining  the  possession,  was  super- 
seded, or  made  unnecessary,  by  the  statute  of  uses  :  for,  by  that  statute,  the 
possession  was  immediately  transferred  to  the  cesfuy  que  use ;  so  that  a  bargainee 
under  that  statute  is  as  much  in  possession,  and  as  capable  of  a  release  before 
or  without  entry,  as  a  lessee  is  at  the  common  law  after  entry.  All,  therefore, 
that  remained  to  be  done,  to  avoid,  on  the  one  hand,  the  necessity  of  livery  of 
seisin  from  the  grantor,  and,  on  the  other,  the  necessity  of  an  actual  entry  on 
the  part  of  the  grantee,  was,  that  the  particular  estate  (which,  for  the  reasons 
above  mentioned,  should  be  an  estate  for  years)  should  be  so  frauied,  as  to  be 
a  bargain  and  sale  within  the  statute.  Originally  it  was  made  in  such  a 
manner  as  to  be  both  a  lease  at  the  common  law,  and  a  bargain  and  sale  under 
the  statute.  But  as  it  is  held,  that  where  conveyances  may  operate  both  by 
the  common  law  and  statute,  they  shall  he  considered  to  operate  by  the  com- 
mon law,  unless  the  intention  of  the  parties  appears  to  the  contrary,  it  became 

the 


272.  a.]  Of  Keleases.         L.  3.  C.  8.  Sect.  463. 

the  practice  to  insert  among  the  operative  words,  the  -words  bargain  and 
sale,  (in  fact,  it  is  more  accurate  to  insert  no  other  operative  words),  and  to 
express  that  the  bargain  and  sale  or  lease  is  made  to  the  intent  and  purpose, 
that  thereby,  and  by  the  statute  of  uses,  the  lessee  may  be  capable  of  a  release. 
The  bargain  and  sale,  therefore,  or  the  lease  for  a  year,  as  it  is  generally 
called,  operates,  and  the  bargainee  is  in  the  possession,  by  the  statute.  The 
release  operates  by  enlarging  the  estate  or  possession  of  the  bargainee  to  a  fee : 
this  is  at  the  common  law,  and  if  the  use  be  declared  to  the  releasee  in  fee 
simple,  it  contains  an  estate  at  the  common  law ;  but  if  the  use  is  declared  to 
a  third  person,  the  statute  again  intervenes,  and  annexes  or  transfers  the  pos- 
session of  the  releasee  to  the  use  of  the  person  to  whom  the  use  is  declared. 
It  has  been  said,  that  the  possession  of  the  bargainee,  under  the  lease,  is  not 
so  properly  merged  in,  as  enlarged  by  the  release :  but,  in  all  events,  it  does 
not,  after  the  release,  exist  distinct  from  the  estate  passed  by  the  release.  As 
the  operation  of  a  lease  and  release  depends  upon  the  lease,  or  bargain  atod  sale, 
the  grantor  must  be  a  person  capable,  at  law,  of  being  seised  to  an  use,  other- 
wise the  release  will  be  void  for  want  of  possession  in  the  releasee.  By  some 
very  respectable  authorities  it  has  been  said  that  a  corporation  cannot  be  seised 
to  an  use.  Pop.  72.  1  Co.  Rep.  127.  a.  Bacon  Stat,  of  Uses,  357.  Plo. 
102.538.  Jenk.  Cent.  195.  2  Ves.  399.  Gilb.  Uses,  5.  170.  285.  Shep. 
Touchs.  508,  A  contrary  doctrine,  so  far  as  relates  to  the  conveyances  of  cor- 
porations by  bargain  and  sale,  seems  to  be  laid  down  in  sir  Tho.  Holland  v. 
Bonis.  1  Leo.  183.  2  Leo.  121.  3  Leo.  175.  And  see  13  H.  7.  fol.  9.  pi. 
5.  To  avoid  doubt  upon  this  subject,  it  seems  advisable  that  corporations 
should  convey  by  feoffment,  or  by  a  lease  and  release,  with  an  actual  entry  by 
the  lessee,  previous  to  the  release ;  after  which  the  release  will  pass  the  rever- 
sion. It  may  also  be  observed,  that,  in  .exchanges,  if  one  of  the  parties  die 
before  the  exchange  is  executed  by  entry,  the  exchange  is  void.  Ant.  50.  b. 
But  if  the  exchange  be  made  by  lease  and  release,  this  inconvenience  is  pre- 
vented, as  the  statute  executes  the  possession  without  entry,  and  all  incidents 
annexed  to  an  exchange  at  common  law,  will  be  preserved. — By  a  temporary 
Irish  statute  of  9  Geo.  11.  ch.  3.  §  6,  the  recital  of  a  lease  for  a  year  in  a  re- 
laase,  is  made,  in  all  cases,  sufficient  evidence  of  it.  By  the  1  G-eo.  III.  c.  3, 
that  statute  was  made  perpetual,  and  profert  of  the  release  declared  sufficient 
in  pleading. 

VII.  The  next  consideration  is,  upon  the  doctrine  of  powers  deriving 
THEIR  EFFECT  FROM  THE  STATUTE  OF  USES ;  but  the  nature  of  these  notes 
requires,  that  what  is  said  on  this  head  should  be  confined  to  some  general  ob- 
servations upon  the  mode,  by  which  such  powers  operate ;  and  the  relation, 
which  the  deeds  by  which  they  are  executed,  bear  to  the  deeds,  by  which  they 
are  created ;  and  Uses  of  Rents. 

VII.  1.  As  to  the  mode  in  which  they  operate. — All  powers  of  this  kind  are, 
in  fact,  powers  of  revocation  and  appointment :  indeed,  every  declaration  of  an 
use  may,  in  some  respect,  be  considered  as  an  appointment  of  the  use  or  uses 
to  which  the  feoffee  is  to  stand  seised :  but  the  word  appointment  is  generally 
applied  to  those  cases,  where,  either  the  power  of  appointment  is  first  reserved, 
or  given,  with  a  subsequent  limitation  of  uses,  to  take  place  until,  and  in  default 
of  the  appointment ;  or,  where  the  uses  are  first  limited,  and  a  power  is  after- 
wards given  to  some  person  to  limit  other  uses.  As  the  uses  limited  under 
powers  cannot  operate,  but  by  the  postponing,  abridging,  or  defeating  the  prior 
uses,  it  is  usual,  in  some  cases,  to  precede  the  power  of  appointment  by  a  power 
of  revocation.  But  this  is  immaterial.  The  powers  of  leasing,  jointuring, 
charging,  selling,  and  exchanging,  usually  inserted  in  marriage  settlements, 
are  powers  of  revocation  and  appointment.  All  of  them  postpone,  abridge,  or 
defeat,  in  a  greater  or  less  degree,  the  previous  uses  and  estates,  and  appoint 
new  uses  in  their  stead.  As  soon  as  the  uses  created  by  them  spring  up,  they 
draw  to  them  the  estate  of  the  feoffee:  and  the  statute  executes  the  possession. 

But 


L.  3.  C.  8.  Sect.  463.  Of  Releases.  [272.  a. 

But  it  must  be  observed,  that  these  powers  do  not  operate  as  a  conveyance 
of  the  possession  of  the  estate,  but  as  a  limitation  of  the  use.     Hence,  if  a 
person,  having  a  power  of  appointment,  appoints  the  estate  to  A.  and  his 
heirs,  to  the  use  of  B.  and  his  heirs,  the  use  is  executed  in  A.  and  his  heirs, 
and  £.  takes   only  an  equitable  fee.     Thus,  suppose  a  marriage   settlement 
framed  in  the  usual  manner,  and  with   the  usual  power  of  selling  and  ex- 
changing reserved  to  the  feoffees ;  in  these  cases,  it  is  sometimes  expressed, 
that  it  shall  be  lawful  for  the  feoffees  to  grant,  bargain,  sell  and  convey.   _  But, 
whatever  arc  the  words  made  use  of,  they  can  only  operate  as  a  limitation  of 
the  use ;  and  the  vendee  will  take  the  legal  estate.     If  the  feoffees  make  a 
conveyance  by  lease  and  release,  there  is  no  doubt  but  it  will  be  effectual ;  it 
will  operate,  however,  as  an   appointment;    the  releasee  will  take  the  legal 
estate,  and  if  the  release  is  made  to  uses,  the  intended  cestinjs  que  me  will  have 
only  equitable  estates.     To  explain  this  more  fully,  it  is  to  be  observed,  that 
those  uses  which  are  not  vested  either  in  possession  or  right,  immediately  on 
the  execution  of  the  deed,  are  termed  future  uses,  and  are  said  to  arise,  either 
by  the  act  of  God,  or  the  act  of  the  party.     Mr.  Booth,  in  his  printed  opinion, 
at  the  end  of  Mr.  Ilillyard's  edition  of  Sheppard's  Touchstone,  gives  an  ex- 
planation of  this  distinction,  which,  if  his  expressions  are  understood  in  the 
sense,  in  which  it  is  evident  he  intended  using  them,  will  be  found  perspicuous 
and  exact.     "  It  is  wholly  immaterial,"  he  says,  "■  how,  or  by  what  means,  the 
"  future  use  comes   in  esse,  whether  by  means  of  some  event  provided  for,  in 
"'case  it  happened,  in  the  creation  of  the  uses,  which  event  may  be  called  the 
"  act  of  God ;  or,  by  means  of  some  work  performed  by  any  certain  person, 
'<  for  which  provision  was  likewise  made,  in  the  creation  of  the  uses,  which 
''  may  be  called  the  act  of  man.     In  either  case,  the  statute  operates  the  same 
"way;  for  the  instant  the  future  use  comes  in  esse,  either  by  the  act  of  God, 
"  or  by  the  act  of  man,  the  statute  executes  the  possession   to  the  use,  and 
"  the  cesfu^  que  use  is   deemed  to  have  the  same  estate  in   the  lands  as  is 
"  marked  out  in  the  use,  by  the  deed  that  created  it.     When  the  use  arises 
"from  an  event  provided  for  by  the  deed,  it  is  called  a  future,  a  contingent, 
"an  executory  use;    when  it  arises  from  the  act  of    some  agent  or  person 
"  nominated  in  the  deed,  it  is  called  a  use  arising  from  the  execution  of  a 
"  power.     In  truth,  both  are  future  or  contingent  uses,  till  the  act  is  done  ; 
''and  afterwards  they  are,  by  the  operation   of  the   statute,  actual  estates. 
"  But  till  done,  they  are  in  suspense,  the  one  depending  on  the  will  of  Heaven 
"  whether  the  event  shall  happen  or  not,  the  other  on  the  will  of  man.  ^  Whilst 
"  these  last  are  in  suspense,  they  are  called  powers."    According  to  this  expla- 
nation, the  uses  raised  by  limitations  to  first  and  other  sons,  or  to  such  first 
or  only  son  who  shall  attain  twenty-one,  or  to  the  survivor  of  A.  and  B.  or  to 
the  right  heirs  of  I.  S. — a  person  then  in  existence, — or  to  C.  if  A.  dies  in  the 
life-time  of  B.  &c.  &c.  are  all  uses  arising  by  the  act  of  God ;  as  they  are 
events,  designated  by  the  original  deed,  but  which   though  designated  by  the 
party,  depend  for  their  effect," on  the  will  of  Providence.     On  the  other  hand, 
where  there  are  limitations  to  such  uses  as  A.  shall  appoint,  or  to  such  of  the 
children  of  ^L,  as  A.  shall  appoint ;  or,  where  a  power  is  given  to  A.  to  jointure, 
to  charge  with  portions,  to  mortgage,  to  lease,  to  sell,  or  to  exchange ; — in  all 
these  cases,  the  persons,  and  the  estates  and  interests  are  to  be  designated  by 
the  party.     He  designates  the  persons,  the  children,  the  mortgagee,  the  lessee, 
the  vendee,  and  exchangee.     These,  therefore,  arc   said  to   arise   by  the   act 
of  the  party.     From  this  explanation  it  is  evident,  that  there  is  no  material 
difference  in  the  quality  of  the  uses;  the  difference  is  in  the   act,  which  pre- 
duces  them.     In  the  latter  case,  the  party  has  the  power  of  raising  t;hem,  and  it 
is  in  that  sense,  that  the  word  power  is  used  in  this  place.     Now,  if  an  estate 
is  conveyed  to  A.  and  his  heirs,  to  the  use  of  B.  for  life,  remainder  to  his  first 
and  other  sons,  successively  in  tail  male;  upon  the  birth  of  the  first  son,  the 
possession  is  executed  in  him  by  the  statute.     Suppose  the  estate  were  con- 
veyed 


272.  a.]  Of  Keleases.  L.  3.  C.  8.  Sect.  463. 

veyed  to  A.  and  his  heirs,  to  the  use  of  B.  for  life,  remainder  to  such  uses 
generally,  or  to  such  son  of  B.  as  B.  shall  appoint,  and  B.  appoints  to  the 
use  of  his  first  son.  Immediately  upon  the  appointment,  the  use  is  executed 
in  the  son.  Then  how  does  this  appointment  operate  ?  Clearly  not  as  a  con- 
veyance. For  B.  had  only  a  life  estate,  and  consequently  could  not  convey 
an  estate-tail,  to  his  own  son ;  it  operates  therefore  as  a  designation  of  the 
person  to  take  the  use  :  B.'s  right  to  make  this  designation  is  termed  a  power 
of  appointment,  the  exercise  of  it  is  termed  an  appointment,  the  person  taking 
under  it  is  termed  the  appointee.  This  may  be  made  more  clear,  by  consider- 
ing how  it  would  have  stood  on  a  limitation  of  uses  at  common  law,  before  the 
statute  of  uses.  Till  that  statute,  a  conveyance  to  A.  and  his  heirs,  to  the 
use  of  B.  for  life,  with  remainder  to  such  uses,  or  to  such  of  his  sons,  as  he 
should  appoint,  was  tantamount  to  what  now  is  a  conveyance  unto  and  to  the 
use  of  A.  and  his  heirs,  in  trust  for  B.  for  life,  remainder  in  trust  for  such 
persons,  or  for  such  of  his  sons,  as  he  shall  appoint.  When,  at  common  law, 
an  appointment  was  made,  to  the  use  of  the  first  son,  the  trustee  stood  seised  at 
common  law,  to  the  use,  or,  as  we  should  now  call  it,  in  trust  for  that  first  son ; 
he  thereupon  became  the  cestui/  que  trust.  Since  the  statute  has  executed  the 
use,  where  the  son  takes  under  an  appointment  of  this  nature,  the  use  is  exe- 
cuted in  him,  and  he  is  the  cestvy  que  use.  Thus,  at  the  common  law,  an  ap- 
pointment operated  to  substitute  one  cestui/  que  trust  in  the  room  of  another. 
Since  the  statute,  an  appointment  operates  to  substitute  one  cestui/  que  use  in 
the  room  of  another.  The  conclusion  is,  that,  wherever  a  party,  having  a  legal 
estate,  conveys  it  to  a  person  and  his  heirs,  to  such  uses  as  that  person  or 
any  other  person  shall  appoint,  and  an  appointment  is  made,  it  operates  not  as 
a  conveyance  of  the  land,  but  as  an  appointment  of  the  use,  and  consequently 
the  appointee  takes  the  use  or  legal  estate.  Therefore,  as  has  been  observed 
before,  if  a  person  having  a  power  of  appointment,  appoints  to  ^1.  and  his  heirs, 
to  the  use  of  B.  and  his  heirs,  the  legal  estate  is  in  A.  In  the  same  manner,  if 
a  person  having  a  power  of  selling  and  exchanging,  conveys  the  estate  to  A. 
and  his  heirs,  to  the  use  of  B.  and  his  heirs,  the  legal  estate  is  equally  in  A. 
by  the  exercise  of  the  power. 

VII.  2.  As  to  the  relation,  which  deeds,  hy  xohich pmvers  are  executed,  hear  to 
the  deeds,  hy  which  thejwioers  loere  created. — It  is  generally  true,  that  the  use 
ci'eated  under  the  power  takes  eflfect  in  the  same  manner,  as  if,  in  the  deed 
containing  the  power,  it  had  been  inserted  instead  of  the  power:  thus,  suppose 
an  estate  conveyed  to  the  use  of  A.  for  life,  remainder  to  such  uses  as  B.  should 
appoint,  and  in  default  of  appointment,  to  the  use  of  B.  and  his  heirs ,  B.  ap- 
points the  estate  to  0.  for  life  ;  remainder  to  his  first  and  other  sons  in  tail  male. 
After  this  appointment  is  made,  it  is  the  same  as  if  the  estate  had  been  originally 
limited  to  the  use  oi  A.  for  life,  remainder  to  the  use  of  C.  for  life  ;  remainder  to 
C.'s  first  and  other  sons  in  tail  male  ;  remainder  to  B.  and  his  heirs.  So,  if  the 
estate  is  limited  to  A.  for  life ;  remainder  to  the  use  of  his  first  and  other  sons  in 
tail  male,  with  power  to  A.  to  appoint  a  rent  charge  to  his  wife,  with  usual  reme- 
dies and  a  term  of  years  for  securing  the  same,  and  to  charge  the  estate  with  por- 
tions, and  to  create  a  term  of  years  for  securing  the  same,  and  he  exercises  these 
powers ;  it  is  the  same,  as  if,  in  the  original  settlement,  the  estate  had  been  limited 
to  the  use  of  A.  for  life,  remainder  to  the  use  and  intent  that  the  wife  might  re- 
ceive her  jointure  and  distrain,  and  enter  upon  and  take  possession  of  the  estate, 
in  case  the  same  should  be  in  arrear;  and,  subject  thereto,  to  the  use  of 
trustees  for  a  terra  of  years  for  further  securing  the  rent  charge;  remainder  to 
the  use  that  the  lands  in  question  may  be  charged  with  portions,  and  subject 
thereto,  to  the  use  of  trustees  for  a  term  of  years  for  raising  the  portions ; 
remainder  to  ^.'s  first  and  other  sons  successively  in  tail  male.  The  relation 
therefore  which  the  deed  by  which  the  power  of  appointment  is  executed,  as 
to  the  deed  by  which  the  power  is  created,  holds  so  far  as  the  use  thus  ap- 
pointed derives  its  eflcct  from,  and  is  served  by  or  out  of,  the  original  seisin  of 

the 


L.  3.  C.  8.  Sect.  463.  Of  Releases.  [272.  a. 

the  conusee,  recoveror,  feoffee,  or  releasee ;  and  as  it  precedes  and  takes  place 
of  all  the  uses  limited  subsequent  or  subject  to  the  power.  In  this  sense  it 
clearly  has  a  relation  to  the  deed  by  which  it  is  raised.  But  it  has  no  other 
relation  in  point  of  time.  In  the  case  of  the  duke  of  Marlborough  v.  lord 
Godolphin,  2  Ves.  61.  lord  Sunderland  left  the  interest  of  30,000^.  to  his 
wife  for  her  life,  and  the  principal,  after  her  decease,  to  such  of  her  children 
as  she  should  by  deed  or  will  appoint.  By  her  will  she  appointed  2,000/.  to 
Mr.  Spencer  and  1,500Z.  to  lady  Morpeth,  who  both  died  in  her  life-time.  It 
was  contended  that  the  appointment  related  back  to  the  time  of  lord  Sun- 
derland's will,  which  relation  would  over-reach  the  death  of  the  two  parties, 
who  were  alive  at  the  time  of  the  death  of  the  testator,  lord  Sunderland ; 
and  then  it  would  be  considered  as  vesting  in  them  in  their  lives.  But  lord 
Hardwicke  denied  this.  He  admitted  that  an  use  taking  effect  by  virtue 
of  an  execution  of  a  power,  was  taken  under  the  authority  of  that  power,  but 
not  from  the  time  of  its  creation;  and  he  exemplifies  this  distinction  by  ap- 
pointments of  uses ;  in  which  case,  says  his  lordship,  if  a  feoffment  is  executed 
to  such  uses  as  the  feoffor  shall  appoint  by  will ;  when  the  will  is  made,  it  is 
clear  the  appointee  is  in  by  the  feoffment,  but  has  nothing  from  the  time  of  the 
execution  of  the  feoffment,  so  as  to  vest  the  estate  in  him;  and  he  thereupon 
decreed  these  legacies  to  have  lapsed  by  the  death  of  the  legatees  in  the  life- 
time of  the  testator.  This  shows  how  much  it  is  necessary  to  qualify  the 
general  expressions  above  alluded  to.  It  also  reconciles  them  with  a  known 
circumstance  attending  powers  of  this  nature,  with  which  it  is  otherwise  difficult 
to  reconcile  them,  viz.  that  by  an  execution  of  a  general  power,  a  person  may 
limit  estates  which  he  could  not  limit  by  the  deed  in  which  the  power  is  con- 
tained. By  a  general  power  of  appointment  is  understood  that  kind  of  power, 
which  enables  the  party  to  appoint  the  estate  to  any  person  he  thinks  proper ; 
and,  in  this  sense,  it  is  opposed  to  a  qualified  or  particular  power,  which  enables 
the  party  to  appoint  to  or  among  particular  objects  only;  as  a  power  of  ap- 
pointing to  his  children,  or  the  children  of  any  other  person.  The  former  has 
been  termed  a  Power  of  Ownership, — the  latter,  a  Power  of  Selection.  A 
general  power  of  appointment  has  no  tendency  to  a  perpetuity,  as  from  its 
very  nature,  it  enables  the  party  to  vest  the  whole  fee  in  himself,  or  in  any 
other  person,  and  to  liberate  the  estate  entirely,  from  every  species  of  limita- 
tion, inconsistent  with  that  fee.  In  fact  therefore  giving  a  person  such  a 
power,  is  nearly  the  same  as  giving  him  the  absolute  fee.  The  only  difference 
is,  that  it  enables  him  to  do,  through  the  medium  of  a  seisin  previously  created, 
that  which,  if  the  fee  had  been  actually  limited  to  him,  he  might  do  by  a 
conveyance  of  the  land  itself;  so  that  in  both  cases  his  power  of  alienation  is 
of  the  same  extent.  But  in  the  case  of  a  particular  or  qualified  power,  where 
the  objects  are  limited,  the  case  is  entirely  different.  The  limitation  of  the 
object  takes  the  land  out  of  commerce,  and  of  course  has  a  tendency  to  that 
perpetuity,  which  the  English  law  of  real  property  does  not  admit.  '^The  con- 
sequence therefore  is,  and  by  a  series  of  cases  it  now  appears  to  be  settled, 
that  where  the  power  is  general,  estates  for  life,  with  remainders  over,  to 
their  issue  in  strict  settlement,  may  be  limited  under  them  to  persons  not  in 
fisse  at  the  time  of  the  execution  of  the  original  deed,  in  the  same  manner,  and 
to  the  same  extent,  as  if  instead  of  being  derived  out  of  the  seisin  of  the  feoffees 
of  the  original  deed,  and  in  that  point  of  view,  as  making  a  part  of  that  deed, 
the  uses  and  estates  so  limited  were  created  by  an  original,  substantive,  inde- 
pendent, and  integral  conveyance.  On  the  other  hand,  in  the  case  of  a  par- 
ticular or  qualified  power,  that  is,  where  the  objects  are  qualified,  as  a  power 
of  appointing  to  the  children  of  the  party  himself,  though  perhaps  it  may 
enable  him  to  appoint  life  estates,  to  children  unborn  at  the  date  of  the  deed 
creating  the  power;  yet,  if  it  enables  him  to  appoint  life  estates  to  those 
children,  it  certainly  does  not  authorize  him  to  extend  the  appointment  to 
the  children  of  these  children,  so  as  to  make  them  take  by  purchase,  nor  to 

appoint 


272.  a.]  Of  Releases.        L.  3.  C.  8.  Sect.  463. 

appoint  any  other  estate,  which  might  not  have  been  created  by  the  very  deed 
creating  the  power.  In  all  cases  therefore  of  particular  or  qualified  powers, 
both  in  the  creation  and  the  exercise  of  them,  care  should  bo  taken  to  ascer- 
tain, that  the  uses  which  the  party  is  empowered  to  raise  under  them,  or  actually 
assumes  to  raise  under  them,  when  he  comes  to  exercise  the  power,  are  such 
as  the  deed  creating  the  power  might  itself  have  raised. 

It  may,  however,  be  proper  to  add,  that  between  deeds  and  wills  there  is  this 
material  distinction  :  a  deed  takes  effect  immediately  on  the  execution  of  it : — 
a  will  is  ambulatory,  and  waits  for  its  effect  till  the  testator's  decease.  In  in- 
quiring therefore  into  the  legality  of  the  limitations  we  are  speaking  of,  the 
reference  in  the  case  of  a  deed,  should  be  to  the  time  of  its  execution;  but  the 
reference  in  the  case  of  a  will,  should  be  to  the  death  of  the  party.  If,  there- 
fore, in  a  deed  exercising  such  particular  power  of  appointment,  there  is  a  limi- 
tation for  life  to  a  person  unborn  at  the  date  of  the  deed  creating  the  power, 
with  remainders  over  to  his  sons  in  strict  settlement,  these  remainders  over  will 
be  void,  and  will  not  be  helped  though  a  son  is  born  on  the  following  day.  In  the 
case  of  a  will  it  is  different.  If  the  son  is  born  in  the  party's  life,  he  is  capable  of  a 
limitation  to  himself  for  life,  with  remainders  over  to  his  sons  in  strict  settlement. 

In  cases  of  this  nature,  there  is  another  material  distinction  between  deeds 
and  wills.  In  deeds,  technical  expressions  are,  in  some  cases,  absolutely  ne- 
cessary, so  that  they  cannot  be  supplied  by  others,  however  forcible  or  clear ; 
in  other  cases  they  have  a  determinate  sense  appropriated  to  them  by  law,  in 
which,  and  in  no  other,  the  law  permits  them  to  be  construed.  In  wills  there 
is  a  greater  latitude  of  construction  :  technical  expressions  are  never  necessary, 
and  every  expression  is  construed  in  the  sense,  in  which  the  testator  appears 
to  have  designed  to  use  it,  so  that,  when  his  intention  is  once  discovered, 
whether  he  uses  technical  language  or  not,  and  if  he  uses  it,  whether  he  uses 
it  in  a  proper  or  an  improper  sense,  his  will  is  construed  solely  with  a  view  to 
what  appears  to  be  his  obvious  meaning,  and  not  according  to  the  rigid  or 
technical  import  of  his  expressions.  Another  rule  in  the  construction  of  wills, 
which  is  admitted  in  a  much  greater  latitude  than  it  is  in  the  construction  of 
deeds,  is,  that  when  a  testator's  general  intent  appears,  the  court,  in  order  to 
give  it  effect,  will  sacrifice  to  it  a  particular  intention  inconsistent  with  it. 
Now,  in  the  cases  of  which  we  are  speaking,  where  the  limitations  are  con- 
strued to  import  a  life  estate  to  an  unborn  son,  and  successive  estates  tail  by 
purchase  to  the  sons  of  that  son,  there,  in  a  deed,  the  latter  limitations  suspend 
the  inheritance  from  vesting  beyond  the  period  allowed  for  its  suspension  by 
the  rules  of  law,  and  are  therefore  void.  But  in  the  case  of  wills,  the  law 
will  not  construe  these  expressions  thus  rigidly.  From  the  manifest  tenor  of 
the  devises  we  are  speaking  of,  it  must  appear  to  be  the  intention  of  the  party, 
that,  all  the  issue,  (male  or  female,  as  the  case  may  happen)  should  take  the 
estate.  This  is  his  general  intention  :  besides  this,  he  appears  to  intend,  that 
they  should  take  the  estate  in  that  manner,  which,  if  allowed,  must  necessarily 
give  estates  by  purchase  to  the  sons  of  the  unborn  son.  This  is  his  particular 
intention;  but  it  cannot  be  effectuated,  being  contrary  to  law.  To  allow  it 
therefore  would  subvert  his  general  intention.  The  court  therefore,  to  give 
effect,  as  far  as  the  law  admits,  to  the  testator's  will,  sacrifices  the  particular  to 
the  general  intent ;  and  conformably  to  this  principle,  as  the  general  intent 
can  only  be  answered,  by  giving  an  estate  tail  to  the  unborn  son,  the  court 
will  construe  the  devise  to  import  an  estate  tail  to  him.  This  construction,  by 
making  the  sons  of  the  unborn  son  take  by  descent,  sacrifices  the  testator's  in- 
tent that  they  should  take  by  purchase ;  but  by  letting  in  all  the  issue,  preserves 
his  general  intent,  that  all  the  issue  should  take — see  Doe  d.  Blandford  &  Ux.  & 
Dymock  v.  Applin,  4  Term  Eep.  82.  Humbcrston  v.  Humberston,  1  Pecre  Wil- 
liams, 332 ;  Chapman  v.  Browne,  3  Burr.  1  (Jo4 ;  Nicholl  v.  NichoU,  2  Black.  Bcp. 
1159;  Pitt  v.  Jackson,  2  Bro.  Ch.  Cases,  51 ;  andRobinson  v.  Hardcastle,  2  Term 
Rep.  241.     To  this  point  the  ultimate  decree  in  the  great  case  of  Hopkins  v. 

Hopkins 


L.  3.  C.  8.  Sect.  463.     Of  Releases.  [272.  a. 

Hopkins  is  very  important.     As  the  points  in  that  case  involve  some  of  the 
most  interesting  doctrines  of  the  law  of  uses,  and  the  printed  account  of  them 
is  to  be  found  only  in  separate  and  detached  cases,  taken  by  different  reporters, 
and  in  different  stages  of  the  cause,  and  as  no  account  has  yet  appeared  in  print 
of  the  final  decree,  it  was  thought  the  following  succinct  account^  of  the  whole 
cause  would  be  acceptable  to  tbe  reader,  and  would  not  be  considered  as  mis- 
placed in  the  present  Note. — The  case  was,  that  Mr.  Hopkins  by  his  will  de- 
vised his  estates  to  the  use  of  trustees  and  their  heirs,  in  trust  for  Samuel 
Hopkins,  (the  son  of  John  Hopkins  the  cousin  and  heir  at  law  of  the  testator,) 
for  his  life;  remainder  to  his  first  and  other  sons  successively  in  tail  male;  and 
for  want  of  such   issue,  "in  case  his  said  cousin  John  Hopkins  should  have 
"  any  other  son  or  sons  of  his  body  lawfully  begotten,  then  in  trust  for  all 
''and  every  of  such  other  son  and  sons  respectively  and  successively,  for  their 
"respective  lives;  with  the  like  remainders  to  their  several  sons,  successively 
"and  respectively,  as  are  thereinbefore  limited  to  the  issue  male  of  the  said 
"Samuel  Hopkins,  son   of  the  said  John  Hopkins;  and  for  default  of  such 
"issue,  then  in  trust  for  the  first  and  every  other  son   of  the  body  of  Sarah, 
"the  eldest  daughter   of  his  said  cousin  John  Hopkins,  lawfully  to  be  begot- 
"ten,  successively  and  according    to    priority  of   birth,  for   their  respective 
"lives;  with  remainders  to  the  heirs  male  of  the  body  of  every  such  son, 
"respectively  and  successively,  the  elder  and  the   heirs  male  of  his  body  to 
"take  before  the  younger  and  the  heirs  male  of  his  body  issuing;  and  for  want 
^^  of  such  issue,  then  in  trust  for  the  first  and  every  other  son  of  the  body  of 
"  Mary,  the  second  daughter  of  his  said  cousin  John  Hopkins,  lawfully  to  be 
"begotten,  successively  and  respectively,  according  to  priority  of  birth,  for 
"their  respective  lives;   with  remainders  to   the  heirs  male  of  the  bodies  of 
"every  such  son  respectively  and  successively,  the  elder  and  the  heirs  male  of 
"his  body  to  take  before  the  younger  and  the  heirs  male  of  his  body  issuing; 
"and  for  want  of  such  issue,  then  in  trust  for  the  first  and  every  other  son  of 
"the  body  of  Elizabeth,  the  third  daughter  of  his  said  cousin  John  Hopkins, 
"lawfully  to  be  begotten,  successively  and  respectively,  according  to  priority 
"of  birth,  for  their  respective  lives;  with  the  like  remainders  to  the  heirs  male 
"of  the  body  of  every  such  son,  respectively  and  successively,  the  elder  and 
"the  heirs  male  of  his  body  to  take  before  the  younger  and  the  heirs  male  of 
"his  body  issuing;  and  for  want  of  such  issue,  then  in  trust  for  the  first  and 
"every  other  son  of  the  body  of  Hannah,  the  youngest  daughter  of  his  said 
"cousin  John   Hopkins,   lawfully   to    be    begotten,   successively  and  respec- 
"tively,  according   to  priority  of  birth,  for   their  respective  lives;  with  the 
"like  remainders   to  the  heirs   male  of  the  body  of  every  such  son  respec- 
"tively  and  successively,  the  elder  and   the  heirs  male   of  his  body  to  take 
" before  the  younger  and  the   heirs  male   of  his  body  issuing;  and  for  want 
"of  such  issue,  and   in   case  his  said  cousin  John  Hopkins  should  have  any 
"  other  daughter  or  daughters  lawfully  begotten,  then   in  trust  for  the  first 
"and  every  other  son  of  every  such   other  daughter,  respectively  and  suc- 
"cessively,  according  to  priority  of  birth,  for   their  respective  and   successive 
"lives;  with  the  like  remainders  to  their^  several  and  respective  heirs  males 
"successively,  the  elder  and  the  heirs  male  of  his  body  to  take  before  the 
"younger  and  the  heirs  male  of  his  body  issuing;  and  in  default  of  such  issue, 
"then  in  trust  for  tlie  first  and  every  other  son  of  his  cousin  Hannah  Dare,  the 
"then  wife  of  Francis  Dare,  and  daughter  of  his  uncle  Samuel  Hopkins,  de- 
"  ceased,  lawfully  begotten  or  to  be  begotten,  successively  and  respectively,  ac- 
" cording  to  priority  of  birth,  for  their  respective  lives;  with  the  like  remainders 
"to  the  heirs  male  of  the  body  of  every  such  son  respectively  and  successively, 
"the  elder  and  the  heirs  male  of  the  body  of  every  such  son  respectively  to 
"take  before  the  younger  and  the  heirs  male  of  his  body  issuing;  and  for  want 
"of  such  issue,  then  in  trust  for  James  Bennett,  the  only  son  of  his  cousin 

"Sarah 


272.  a.]  Of  Releases.    L.  3.  C.  8.  Sect.  463. 

"Sarah  Alloway,  then  the  wife  of  William  Alloway,  and  another  daughter  of 
"  his  said  uncle  Samuel  Hopkins  deceased,  by  Mr.  Bennett,  her  former  hus- 
"band,  for  his  the  said  James  Bennett's  life;  with  remainder  to  his  first  and 
"  every  other  son  lawfully  to  be  begotten,  successively,  according  to  priority  of 
"birth,  and  the  heirs  male  of  every  such  son  respectively  and  successively,  the 
"elder  and  the  heirs  male  of  his  body  to  take  before  the  younger  and  the  heirs 
"male  of  his  body  issuing;  and  in  default  of  such  issue,  then  in  trust  for  his 
"own  right  heirs  for  ever?"  With  a  proviso,  that  whoever  should  come  to  his 
estate  should  take  his  surname  and  coat  of  arms;  and  a  proviso,  disposing  of 
the  rents  during  the  minorities  of  the  devisees : — And,  after  giving  a  great 
number  of  legacies,  he  gave  the  rest  and  residue  of  his  personal  estate  to  his 
executors,  in  trust  that  the  same  should  be  by  them,  or  the  survivors  of  them, 
with  all  convenient  speed  laid  out  in  the  purchase  of  messuages,  lands,  and 
tenements  of  inheritance  in  England,  to  be  conveyed  to  the  executors  and  their 
heirs,  upon  the  several  trusts  and  for  the  same  purposes  as  were  thereby  de- 
clared touching  the  estates  he  was  then  seised  of,  and  which  he  had  devised. 
And  the  testator  appointed  sir  Richard  Hopkins,  John  Budge,  and  James  Hop- 
kins, executors  of  his  will.  And  after  his  decease  it  was  proved  by  sir  Bichard 
and  Mr.  James  Hopkins.  Samuel  Hopkins,  the  son  of  John  Hopkins,  the  tes- 
tator's cousin,  died  in  the  testator's  life.  After  the  testator's  death,  John  Hop- 
kins, the  cousin  and  heir  of  the  testator,  and  his  four  daughters,  the  said  Sarah, 
Mary,  Elizabeth,  and  Hannah  Hopkins,  and  also  Amey  Hopkins,  another  daugh- 
ter of  John  Hopkins  the  cousin,  born  after  making  the  said  will,  exhibited  a 
bill  in  chancery  against  sir  Bichard  Hopkins,  .John  Budge,  and  James  Hopkins, 
and  against  John  Dare,  Francis  Dare,  and  Philip  Dare,  infants,  (children  of 
Hannah  Dare)  and  also  against  the  said  James  Bennett :  stating,  amongst  other 
things,  the  will  of  Mr.  Hopkins;  and  praying  that  the  executors  might  account 
for  the  testator's  personal  estate,  and  the  rents  and  profits  of  his  real  estate, 
and  that  such  of  those  profits  as  did  not  pass  by  his  will,  together  with  the 
legacy  given  to  John  Hopkins,  the  cousin,  might  be  paid  to  him,  and  that  the 
residue  of  the  said  testator's  personal  estate,  after  payment  of  his  debts,  legacies, 
and  funeral  expenses,  might  be  placed  out  in  proper  purchases,  according  to 
the  directions  in  the  testator's  will ;  and  in  the  mean  time  be  improved  at 
interest.  In  Hilary  term  1732,  sir  Bichard  Hopkins  and  James  Hopkins 
filed  a  cross  bill  against  the  complainants,  to  have  the  trusts  of  the  will  carried 
into  execution,  and  for  an  account  of  the  real  and  personal  estate  of  the  testa- 
tor. On  the  25th  October  1733,  by  a  decree  in  these  causes,  by  the  master  of 
the  rolls,  it  was  declared,  among  other  things,  that  the  plaintifi'  John  Hopkins 
was  entitled  to  the  rents  and  profits  of  the  testator's  real  estate  accrued  since 
his  decease,  till  some  person  should  come  in  being,  that  should  be  entitled  to 
an  estate  for  life,  according  to  the  limitations  in  the  said  will;  and  that  he  was 
in  like  manner  entitled  to  the  surplus  produce  of  the  said  testator's  personal 
estate,  after  payment  of  the  annual  sums  charged  thereon  by  the  said  testator's 
will;  and  that  the  residue  of  the  personal  estate  was  to  be  laid  out  in  the  pur- 
chase of  lands,  with  the  approbation  of  the  master,  and  settled  to  the  same  uses 
and  upon  the  same  trusts  as  the  real  estates,  devised  by  the  said  testator's  will, 
stood  settled;  and  that  until  such  purchase  could  be  found  out,  the  personal 
estate  should  be  put  out  at  interest  upon  government  or  other  securities,  with 
the  approbation  of  the  master,  in  the  names  of  sir  Bichard  Hopkins  and  James 
Hopkins,  upon  the  trusts  of  the  will,  and  the  surplus  rents  and  profits  of  the 
estates  devised  to  sir  Bichard  Hopkins  and  James  Hopkins,  and  the  estates  to 
be  purchased  as  aforesaid,  and  also  the  surplus  produce  of  the  said  personal 
estate,  until  such  purchase  was  made,  was  to  be  paid  to  John  Hopkins,  the  tes- 
tator's cousin,  until  some  person  should  come  in  being,  that  should  be  entitled  to 
an  estate  for  life,  according  to  the  limitations  of  the  testator's  will.  On  the  18  th 
November  1734,  the  cause  came  before  lord  chancellor  Talbot  upon  an  appeal ; 
and  the  decree  was  affirmed,  with  the  addition  that  the  words  "in  possession" 

should 


L.  3.  C.  8.  Sect.  463.        Of  Releases.  [272.  a. 

should  be  inserted  in  the  decree  in  two  places  next  after  the  clause  "  until 
"  some  person  should  come  in  being,  that  should  be  entitled  to  an  estate  for 
"  life. — The  report  of  this  cause  in  Cas.  in  Eq.  temp.  Talbot,  44.  reaches  this 
period  of  the  cause.  By  the  decrees  made  on  these  parts  of  it,  the  two  follow- 
ing important  points  were  settled;  tliat  during  the  suspense,  which,  by  the 
death  of  Samuel  Hopkins  in  the  testator's  life-time,  took  place  during  the  life 
of  John  until  he  had  another  son,  or  until,  by  his  decease  without  other  issue, 
(if  that  event  had  happened,)  the  possibility  of  his  having  another  son  would 
have  determined,  the  limitations  enured  as  executory  devises )  and  that,  during 
-such  suspense,  the  rents  and  profits  of  the  real  estate  being  undisposed  of  by 
the  testator,  (his  disposition  of  them  having  effect  only  during  the  minorities 
of  the  persons  actually  entitled,)  belonged  to  the  heir  at  law. — Here  the  cause 
was  left  by  lord  Talbot's  decree. — In  June  1736,  John  Hopkins  had  a  second 
son,  named  William,  who  died  in  the  following  December. — Upon  this,  the 
eldest  .son  of  Hannah  Dare  having  attained  21,  and  being  the  first  tenant  for 
life  in  esse,  brought  his  bill  to  have  a  settlement  made  by  the  trustees,  in  which 
settlement  he  insisted  to  be  made  immediate  tenant  for  life. — In  this  stage  of 
the  business  it  was  argued,  that  the  estate  having  become  vested  in  the  second 
son  of  John  Hopkins  (the  testator's  cousin)  and  by  his  death  without  issue,  the 
suspense  of  there  being  a  future  child  of  John  Hopkins  being  again  renewed, 
the  ulterior  limitations  must  operate  as  contingent  remainders,  and  that  as  there 
was  no  estate  to  support  them,  they  were  absolutely  void,  and  the  heir  at  law  of 
course  entitled  to  the  estate.  In  answer  to  this,  it  was  contended,  that  the  sub- 
sequent limitations  might  be  supported  as  so  many  distinct  executory  devises; 
but  that,  if  it  was  necessary  to  consider  them  as  contingent  remainders,  they 
were  good  in  their  original  creation,  and  supported  by  the  legal  fee  outstanding 
in  the  trustees.  These  points  came  before  lord  Hardwicke  in  1738,  and  his 
lord.ship  was  of  opinion,  that  the  preceding  freehold  being  once  vested,  the 
ulterior  devises  thereupon  operated  as  contingent  remainders;  and  having  once 
become  such,  no  subsequent  event  could  make  them  enure  as  executory  devises; 
so  that  they  were  thenceforth  to  be  considered  as  contingent  remainders;  and 
his  lordship  was  of  opinion,  that  the  legal  fee  in  the  trustees  was  sufficient  to 
support  them.  Mr.  Atkyns's  report  of  this  case,  1  vol.  581.  embraces  this 
stage  of  it.  After  this  there  is  no  printed  account  of  this  important  case. 
From  the  proceedings  of  the  cause,  it  appears,  that  John  Hopkins,  the  cousin 
of  the  testator,  died  without  issue  male,  and  without  having  had  any  son 
except  Samuel  and  "William. — Sarah  Hopkins  had  one  daughter,  who  died  an 
infant  and  unmarried;  and  afterwards  Sarah  died. — Mary  had  a  son  and  a 
daughter,  who  both  died  without  issue;  and  afterwards  Mary  herself  died. — 
Elizabeth,  the  third  daughter,  intermarried  with  Benjamin  Bond,  esquire,  by 
whom  she  had  issue  one  son,  named  Benjamin  Bond  Hopkins,  he  having  taken 
upon  him  the  name  and  arms  of  Hopkins,  in  pursuance  of  the  directions  for  that 
purpose  contained  in  the  testator's  will. — Hannah,  the  fourth  daughter,  inter- 
married with  William  Hallet,  esquire,  and  died,  leaving  only  one  child,  named 
Hannah.  Amey,  the  youngest  daughter  of  John  Hopkins,  the  cousin,  died  an 
infant,  and  without  issue.  John  Dare  also  died,  leaving  one  son,  also  named 
John  Dare;  and  Francis  Dare  also  died. — In  1772,  Mr.  Benjamin  Bond  Hop- 
kins suffered  a  recovery  of  the  estates,  and  declared  the  use  to  himself  in  fee 
simple.  In  Michaelmas  term  in  the  same  year,  he  filed  a  supplemental  bill  in 
chancery  against  the  trustees  of  the  real  and  personal  estate  of  the  testator  John 
Hopkins,  and  his  heirs  at  law  and  devisees  in  remainder,  and  prayed  thereby 
that  the  real  estates  might  be  conveyed  to  him  and  his  heirs.  On  the  8th  July 
1774,  the  cause  was  heard  before  lord  chancellor  Bathurst,  and  his  lordship 
thereupon  finally  ordered,  that  the  trustees  should  convey  the  real  estates  to 
Benjamin  Bond  Hopkins,  and  his  heirs,  or  as  he  should  appoint. — In  the  exe- 
cution of  powers,  too  rigid  an  adherence  to  the  form  prescribed  cannot  be 
observed  :  but  it  is  not  necessary  that  the  words,  or  even  the  form  of  the  power, 

should 


272.  a.]  Of  Releases,        L.  3.  C.  8.  Sect.  463. 

should  be  used,  if  the  material  circumstances  of  the  power  are  pursued,  and  the 
party  appears  to  have  had  the  subject  of  his  power  in  contemplation.  By  a 
series  of  acknowledged  authoi-ities,  it  is  settled  beyond  all  doubt,  first,  that,  to  a 
valid  exercise  of  a  power,  a  reference  to  or  notice  of  that  power  is  not  necessary, 
if  it  sufficiently  appears  that  the  party  intends  exercising  it :  Secondly,  that  it  is 
considered  as  sufficient  evidence  of  the  party's  intention  to  exercise  the  power, 
if  his  intention  appears  to  be,  to  do  that  act,  which  his  power  authorizes  him  to 
do,  but  which  he  is  not  authorized  to  do,  without  resorting  to  his  power.  Thus, 
where  a  tenant  for  life,  with  several  remainders  over  in  strict  settlement,  and 
with  a  general  power  of  revocation  and  new  appointment,  conveys  to  a  purchaser 
by  lease  and  release,  bargain  and  sale,  or  feoffment,  without  noticing  his  power, 
it  is  a  valid,  but  a  very  informal  and  improper  execution  of  the  power;  for  the 
party  cannot  vest  the  fee  in  the  purchaser  without  resorting  to  his  power,  it  is 
therefore  evident  he  intends  exercising  it ;  and  consequently  if  the  formalities 
prescribed  by  the  power  are  pursued,  it  will  be  considered  as  a  substantial  exe- 
cution of  the  power.  Still  it  is  necessary  that  it  should  appear  to  be  the  inten- 
tion of  the  party  to  exercise  the  power;  and  therefore,  generally  speaking,  it 
is  necessary  he  should  mention  the  property  which  is  the  subject  of  the  power. 
See  sir  Edward  Clere's  case,  6  Rep.  17.  b.  12  Mod.  469.  Guy  v.  Dormer, 
sir  Tho.  Raymond,  295.  Snape  v.  Turton,  2  Roll.  Abr.  263.  Fitzwilliam's 
ease,  Moore,  681.  Kibbett  v.  Lee,  Hob.  312.  Fitzgerald  v.  lord  Fauconberge, 
Fitzgibbon,  207 — 215.  Tomlinson  v.  Dighton,  1  P.  W.  149.  Jenkins  v. 
Kemishe,  Hard.  395.  1  Lev.  150.  Campbell  v.  Leach,  Amb.  740.  Molton 
V.  Hutchinson,  1  Atk.  558.  and  ex  parte  George  Caswall,  ibid.  559. — In  all 
cases,  however,  where  there  is  an  informal  execution  of  a  power,  it  operates  in 
the  mode  in  which  the  power  operates,  not  in  the  mode  in  which  the  deed,  the 
form  of  which  is  used,  would  operate.  If,  therefore,  a  person  having  a  power 
of  appointment,  conveys  by  lease  and  release,  and  these  can  only  have  effect,  as 
an  execution  of  a  power,  the  conveyance  operates  as  an  appointment,  and  not 
as  a  release ;  and  of  course,  if  it  is  a  release  to  A.  and  his  heirs,  to  the  use  of 
B.  and  his  heirs,  the  legal  estate  is  vested  in  A. 

In  the  exercise  of  powers,  conveyancers  have  introduced  two  precautions, 
which  are  often  proper,  but  certainly  sometimes  superabundant :  one  is,  to 
make  the  party  exercising  the  power,  declare,  that  he  acts,  uot  only  in  exercise 
of  that  particular  power,  but  in  exercise  of  every  other  power,  enabling  him  to 
do  the  act  in  question :  the  other  is,  where  the  party  has  a  special  power  over 
land,  and  is  also  entitled  to  the  fee,  or  to  any  particular  estate  carved  out  of  it, 
he  is  made  not  only  to  exercise  his  power,  but  also  to  convey  the  land  as  owner 
of  it.  Thus,  where  a  person  having  a  power  of  appointment,  intends  conveying 
his  estate  to  a  purchaser,  he  is  made  not  only  to  appoint  the  fee,  but  to  convey 
it  by  lease  and  release.  Sometimes  the  appointment  and  the  release  are 
blended  together;  but  this  is  very  informal,  and  is  always  improper,  where  it 
is  not  the  intent  of  the  deed  that  the  party  should  have  the  legal  estate.  It  may 
however  be  contended,  that  the  court  would  marshal  the  words,  so  as  to  give 
them  all  their  intended  effect ;  as,  where  a  person  having  a  power,  is  made  to 
grant,  bargain,  sell,  alien,  release,  limit,  appoint,  and  confirm  the  lands  to  A. 
and  his  heirs,  to  the  use  of  B.  and  his  heirs;  it  may  be  contended,  that  the 
court  would  construe  the -words  grant,  hargain,  sell,  alien,  release  and  confirm, 
as  referrible  to  xi.  and  his  heirs,  and  the  words  limit  and  apj)oint  as  referrible 
to  B.  and  his  heirs.  See  Cox  v.  Chamberlain,  4  Ves.  jun.  631.  Roach  v. 
Wadham,  6  East,  289.  One  reason  for  making  the  party  in  these  cases  both 
convey  and  appoint,  is,  that  if  the  power  either  was  not  well  created,  or  is 
become  suspended,  and  he  has  himself  any  estate  in  the  land,  the  conveyance 
will  operate  on  his  estate. 

In  some  cases,  it  is  necessary  both  to  appoint  and  convey;  as  where  an  estate 
is  limited  to  A.  for  life,  remainder  to  such  uses  as  he  shall  appoint;  here  the 
appointment  would  operate  only  on  the  reversion  expectant  on  the  life  estate : 

a  conveyaBce 


L.  3.  C.  8.  Sect.  463.       Of  Releases.  [272.  a. 

a  conveyance  therefore  is  necessary  to  pass  the  life  estate.  This  observation 
may  serve  to  correct  a  mistake  which  is  sometimes  made  by  those  who  levy  fines, 
with  a  view  to  enable  them  to  dispose  of  their  estates,  and  therefore  direct  the 
fine  to  operate  to  the  use  of  the  party  himself  during  bis  life,  remainder  to  his 
wife  for  life,  remainder  to  such  uses  as  he  shall  appoint.  Here  the  appoint- 
ment operates  only  to  the  reversion,  and  consequently,  to  pass  the  wife's  life 
estate,  a  new  fine  is  necessary.  To  prevent  this,  the  power  of  appointment, 
in  these  cases,  should  precede  the  uses.  For  the  same  reason,  when  a  settle- 
ment is  executed  of  personal  estate,  which  it  is  intended  to  subject  to  the 
appointment  of  the  husband  and  wife,  or  either,  with  successive  life  estates  to 
them  in  default  of  appointment,  the  power  should  precede  the  trusts  conferring 
these  life  interests  on  them. 

It  may  be  observed,  that,  when  a  person  creates  a  power  of  appointment,  to 
enable  him  to  dispose  of  his  estate,  within  a  short  time  after,  it  is  better  to 
vest  the  legal  estate  in  the  trustees,  by  conveying  it  unto  and  to  the  use  of  them, 
and  their  heirs,  upon  trust  to  convey  it  as  the  party  shall  appoint,  than  to  con- 
vey it  to  the  trustees  and  their  heirs,  to  such  uses  as  the  party  shall  appoint; 
for  powers  are  liable  to  be  suspended  and  extinguished  by  very  secret  acts ;  of 
these,  from  their  nature,  purchasers  must  often  be  ignorant.  In  these  cases, 
therefore,  they  often  rest,  in  some  measure  at  least,  on  the  honour  of  the  ven- 
dor ;  but,  when  the  legal  estate  is  vested  in  the  trustees,  a  conveyance  from 
them  will,  at  all  events,  give  the  purchasers  the  legal  estate. 

As  estates  created  by  powers,  and  estates  created  by  conveyances,  are  after 
their  creation  the  same,  the  terms  expressing  the  operation  of  appointments 
and  conveyances,  are  very  often,  both  in  the  deeds  creating  the  powers,  and  the 
deeds  by  which  they  are  exercised,  confounded.  Something  of  this,  was,  till 
lately,  generally  discernible  in  the  best  drawn  marriage  settlements.  Thus,  in 
the  power  of  leasing,  the  party  is  authorized  to  grant,  lease,  or  demise,  when, 
in  fact,  he  can  neither  grant,  lease,  or  demise  for  a  longer  term  than  his  own 
life ;  the  power  therefore  does  not  authorize  him  to  grant,  &c.  the  lands,  but  to 
appoint  the  use  of  the  lands,  for  the  number  of  years  or  lives  in  question  :  the 
expression  therefore  should  be,  to  limit  or  appoint  by  way  of  lease  or  demise. 
So,  in  the  power  of  selling  and  exchanging,  it  is  often  said,  that  it  shall  be  law- 
ful for  the  trustees  to  grant,  bargain,  sell,  release,  and  confirm  the  lands ;  but, 
in  the  strict  sense  of  these  words,  it  is  impossible  for  the  trustees  to  grant, 
bargain,  sell,  release,  or  confirm  ;  for  the  trustees  have  no  actual  estate,  except 
their  estate  for  preserving  contingent  remainders;  and  therefore,  cannot  convey 
the  lands  for  a  larger  term.  The  power  therefore  operating  as  an  appointment 
of  the  whole  fee,  the  expression  here,  as  m  the  former  case,  should  be,  limit 
and  appoint.  As  this  last  power  amounts  to  a  total  determination  of  all  the 
subsisting  uses,  and  a  creation  of  an  entire  new  estate  of  inheritance,  it  seems 
advisable  to  accompany  it  with  a  power  of  revocation.  It  may  therefore  be  ex- 
pressed, that  it  shall  be  lawful  for  the  trustees  to  sell  and  exchange,  and,  for 
that  purpose,  to  revoke  the  uses  of  the  deed,  and  to  appoint  new  uses ;  and  the 
more  general  these  powers  of  revocation  and  new  appointment  are  expressed,  the 
better,  as  a  mere  power  to  revoke  the  uses  of  the  estate  intended  to  be  sold,  and 
to  appoint  it  to  the  purchaser,  is  sometimes  found  insufficient  to  answer  the 
object,  as  where  there  is  an  agreement  between  the  vendor  and  vendee  to  ap- 
portion rents.  It  is  also  a  consequence  of  these  powers  operating  by  way  of 
appointment,  that  the  use  is  vested  by  them  in  the  appointee,  and,  therefore, 
when  by  them  the  lands  are  expressed  to  be  conveyed  to  A.  and  his  heirs,  to  the 
use  of  B.  and  his  heirs,  or  to  the  use  of  B.  for  life,  with  remainders  over,  the 
whole  legal  fee  is  vested  in  A.  and  the  uses  declared  upon  it  have  effect  only  as 
trusts  in  equity.  The  appointment  therefore  should  be  immediately  to  the  use 
of  the  persons  intended  to  take  beneficially  under  the  proposed  instrument. 

It  is  observable,  that  powers  of  leasing,  and  of  selling  and  exchanging,  are 

generally 


272.  a,J  Of  Eeleases.        L.  3.  C.  8.  Sect.  463. 

geaerally  limited  to  the  persons  to  whom  they  are  intended  to  be  given,  and  the 
survivor  of  them,  and  the  heirs  of  the  survivor :  it  is  a  necessary  consequence 
of  this,  that,  if  the  power  becomes  vested  in  the  heir  of  the  survivor,  and  that 
heir  is  an  infant,  the  power  cannot  be  exercised  during  his  minority.  By  the 
act  7  Ann.  c.  19,  infant  trustees,  by  the  direction  of  the  court  of  chancery,  signi- 
fied by  order  upon  petition,  are  empowered  to  convey  estates  held  by  them  in 
trust.  But  infants  cannot  convey  under  a  power,  without  an  act  of  parliament. 
To  avoid  this  inconvenience,  it  is  advisable  to  limit  the  power  in  question  to  the 
executors  or  administrators  of  the  survivor.  This  observation,  however,  is  con- 
fined to  the  case  of  powers,  and  does  not  extend  to  the  cases  of  trusts,  where 
the  legal  estate  is  vested  in  trustees ;  for  the  trust  should  always  follow  the 
legal  estate  of  the  land,  when  it  is  conveyed  to,  and  intended  to  reside  in,  the 
trustees.  It  should  consequently  be  vested  in  those  persons  upon  whom  the 
lands  are  intended  to  devolve.  Where  therefore  lands  are  conveyed  unto  and 
to  the  use  of  trustees  and  their  heirs  in  trust  to  sell ;  as  the  lands  necessarily 
devolve  on  the  survivor,  and  the  heirs  and  assigns  of  the  survivor,  the  trust 
should  in  like  manner  be  limited  to  the  survivor,  his  heirs  and  assigns. 

It  often  happens  that  the  same  deed  contains  several  powers ;  and,  supposing 
all  or  even  more  than  one  of  them,  to  be  executed,  there  is,  at  least,  ground  to 
argue  that,  generally  speaking,  the  use  limited  by  the  power  last  executed, 
will  take  place  of  all  the  uses  created  by  the  powers  previously  executed,  unless 
the  contrary  is  expressed  or  implied  in  the  deed.  In  Moore,  788.  lord  Coke  is 
made  to  say,  that  if  a  tenant  for  life,  with  a  power  of  leasing,  and  a  general 
power  of  revocation,  makes  a  lease  under  his  power  of  leasing,  he  may  after- 
wards revoke  all  but  the  leases.  It  is  however  to  be  observed,  that  when  a 
power  is  eScercised  for  a  valuable  consideration,  in  such  a  manner  as  shows  it  to 
be  the  intention  and  agreement  of  the  parties,  that  the  use  created  under  it 
should  not  be  over-reached  by  the  execution  of  another  power,  it  is  contrary  to 
equity,  that  it  should  be  thus  over-reached,  and,  consequently,  the  unexecuted 
powers  maybe  so  far  affected,  both  at  law  and  in  equity,  as  to  be  subject  to  the 
use  created  under  the  executed  power.  To  avoid  all  disputes  upon  these  heads, 
it  is  necessary  to  express  very  clearly  what  uses  are,  and  what  uses  are  not, 
intended  to  be  over-reached,  by  the  execution  of  the  powers,  both  as  to  the  uses 
actually  limited  by  the  settlement  itself,  and  as  to  the  uses  to  be  limited  under 
the  powers  contained  in  that  settlement.  In  a  marriage  settlement,  the  wife  and 
the  younger  children  of  the  marriage  are  principal  objects.  Unless  therefore  the 
parties  intend  the  contrary,  all  the  powers  of  charging  with  money  should  be 
declared  to  be  subject  and  without  prejudice  to  the  provisions  made  for  the  wife 
and  younger  children.  With  respect  to  the  other  powers,  the  principal  of  these 
are  the  powers  of  leasing,  and  of  selling  and  exchanging.  As  it  is  equally 
for  the  benefit  of  the  persons  entitled  in  remainder  or  reversion  as  of  the  tenant 
for  life,  that  the  estate  should  be  properly  let  out  upon  leases,  there  is  no 
reason  why  the  estate  of  the  wife,  or  any  other  person  claiming  in  remainder  or 
reversion,  should  be  made  paramount  to  the  leases.  With  respect  to  the  powers 
of  selling  and  exchanging,  the  jointure  of  the  wife,  and  the  portions  of  the 
children,  may  be  transferred  to  the  estates  to  be  acquired  under  those  powers, 
and  to  the  money  arising  from  the  sale  of  the  settled  estate,  till  the  new  estate 
is  purchased  :  it  is  also  to  be  observed,  that  the  sales  and  exchanges  cannot  be 
made  without  the  parents  consent.  There  seems  therefore  no  reason  for 
exempting  any  of  the  uses,  except  the  leases,  from  the  exercise  of  that  power; 
but,  with  respect  to  the  leases,  these,  from  their  nature,  cannot  be  transferred 
to  the  lands  to  be  acquired  under  the  powers,  and  consequently  these  should 
not  be  subject  to  the  powers  of  selling  and  exchanging.  The  same  objection 
lies,  in  a  certain  degree,  to  powers  of  raising  money  by  way  of  mortgage.  No 
person  would  advance  money  on  mortgage  of  this  nature,  if  they  were  to  be 
made  subject  to  the  general  powers  of  sale  or  exchange ;  and  therefore,  to  pre- 
vent all  doubt  on  this  head,  it  should  be  declared,  that  the  powers  of  selling  and 

exchanging 


L.  3.  C.  8.  Sect.  463.       Of  Eeleases.  [272.  a. 

exchanging  should  be  subject  to  mortgages  previously  made,  unless  it  shall  be 
with  the  consent  of  the  mortgagee;  and  that,  in  the  case  of  such  consent,  the 
lands  to  be  purchased,  or  taken  in  exchange,  may  be  mortgaged  to  them  for 
their  security. 

It  often  happens,  that  powers  are  given  to  parties  to  be  exercised  by  them, 
when  in  the  actual  possession  of  the  estate.  In  some  cases  this  is  done  with- 
out adverting  suiEciently  to  the  situation  and  probable  wants  of  the  parties. 
Suppose  an  estate  devised  by  the  husband  to  his  wife  for  her  life,  remainder 
to  Jier  son  for  his  life,  with  remainders  over  in  strict  settlement;  with  powers 
to  the  son,  when  in  possession,  to  jointure  and  charge  with  portions.  During 
the  mother's  life,  the  son  is  not  in  possession,  and  consequently  is  not  in  a 
situation  to  exercise  those  powers.  Now,  though  it  may  be  improper,  and 
contrary  to  the  intention  of  the  parties,  that  the  jointure  to  be  made  by  the 
son  should  charge  the  mother's  estate,  during  her  life,  against  her  consent, 
there  can  bo  no  reason  why  it  should  not  charge  the  estate  with  her  consent; 
neither  is  there  any  objection  to  the  son's  being  enabled  to  exercise  the  power 
in  her  life-time,  provided  the  jointure  do  not  take  effect,  so  as  to  be  payable  or 
to  charge  the  estate,  till  after  her  decease.  It  seems  therefore  advisable,  that, 
in  cases  of  this  nature,  the  son  should  be  entitled  to  exercise  the  powers,  with 
the  mother's  consent,  during  her  life,  or  to  exercise  them,  without  her  consent, 
subject  to  her  life  estate.  Sometimes,  when  the  difficulty  in  question  has  arisen, 
it  has  been  attempted  to  put  the  party  in  a  situation  to  exercise  the  power  by 
accelerating  his  possession  of  the  estate.  In  one  case  this  may  be  thought  to 
answer  the  object  intended;  this  is,  where  A.  is  tenant  for  life  with  the  imme- 
diate remainder,  (without  any  limitation  to  trustees),  to  B.  for  life,  with  a 
power  to  B.  to  jointure  when  in  possession.  Here,  if  A.  surrenders  to  B.,  B. 
is,  to  all  purposes,  in  possession  of  the  estate,  and  may  therefore  be  considered 
to  be  in  a  situation  to  exercise  his  powers.  But,  where  there  is  an  intermediate 
estate,  this  never  can  be  relied  on.  If  it  is  expressed  in  the  deed,  as  it  gene- 
i*ally  is,  that  it  shall  be  lawful  for  the  party  to  exercise  the  power  when  in 
possession  under  the  limitations,  and  there  is  a  limitation  to  trustees  to  pre- 
serve the  contingent  remainders,  the  first  tenant  for  life  can  in  no  wise  put  the 
second  tenant  for  life  in  possession  of  the  estate  but  by  an  actual  conveyance 
of  his  life  estate;  consequently  the  party  will  then  be  in  possession,  not  by 
virtue  of  the  limitations  of  the  deed,  but  by  the  act  of  the  first  tenant  for  life. 
For,  instead  of  being  tenant  in  possession  for  his  own  life  only,  as  he  would 
be,  if  he  was  in  possession  under  the  limitations  in  the  deed,  he  is  tenant  in 
possession  for  the  life  of  another  person,  with  a  remainder  for  his  own  life;  so 
that  he  has  two  estates  which  ai-e  perfectly  distinct,  and  under  the  limitations 
of  the  settlement,  he  is  only  tenant  for  life  in  remainder.  Where  these  words 
therefore  are  inserted,  it  seems  clear  the  party  is  not  in  possession  within  the 
words  or  meaning  of  the  deeds,  and  consequently  not  in  a  situation  of  exer. 
cising  his  power.  Where  these  words  are  not  inserted,  it  may  be  contended 
that  they  ought  to  be  implied. 

VII.  3.  Before  we  proceed  to  the  last  head  of  this  annotation,  of  the  uses 
not  executed  by  the  statute,  the  following  observations  are  offered  on  USES 
OF  RENTS. — These  are  executed  by  the  statute :  so  that,  where  lands  are 
conveyed  to  A.  and  his  heirs,  to  the  use,  intent,  and  purpose,  that  B.  or  that 
B.  and  his  heirs  may  receive  a  rent,  the  rent  is  executed.  When  therefore 
lands  are  conveyed  to  A.  and  his  heirs,  to  the  use,  intent,  and  purpose,  that 
B.  and  his  heirs  may  receive  a  rent,  with  a  declaration  that  B.  and  his  heirs 
shall  stand  seised  of  the  rent,  to  the  use  of  C.  for  life,  with  remainders  over; 
the  rent  is  executed  in  B.,  and  then  C.  and  the  remainder-men  take  only  the 
trust  of  the  rent.  If  the  estate  be  conveyed  to  A.  and  his  heirs,  to  the  use 
that  B.  may  receive  a  rent  for  life;  and  after  his  decease,  to  the  use  that  his 
first  and  other  sons  successively,  and  the  heirs  of  their  respective  bodies,  may 

Vol.  II. — 25  receive 


272.  a.]  Of  Releases.      L.  3.  C.  8.  Sect.  463. 

receive  the  rent;  these,  it  may  be  contended,  are  distinct  rents;  and  therefore 
the  rent  to  the  second  son  may  be  considered  too  remote,  as  being  a  new  rent 
limited  to  take  effect  after  an  indefinite  failure  of  the  issue  of  the  first  son. 
Objections  also  may  be  made  to  recoveries  suffered  by  the  father  and  son,  as 
the  tenant  to  the  praecipe  being  made  by  the  father  he  will  not  be  seised  of 
that  rent,  in  which  the  son's  entail  subsists.  The  way  therefore  to  limit  the 
rent  is,  to  grant  a  rent  to  a  stranger  and  his  heirs,  that  he  may  re-grant  it  to 
the  intended  uses. 

VIII.  The  remaining   subject  for  observation   is,    WHAT  USES  ARE 
NOT  EXECUTED  BY  THE  STATUTE. 

VIII.  1.  As  to  ^tses  created  hy  loilh,  it  is  to  be  observed,  that  lands  were 
not  devisable  at  common  law,  otherwise  than  by  local  customs  of  particular 
places,  except  through  the  medium  of  a  previous  feoffment  to  uses.  The 
cestuy  qiie  trust  might  dispose  of  the  use  by  will :  the  court  of  chancery  consi- 
dered the  will  as  a  declaration  of  the  use,  and  compelled  the  feoffees  to  convey 
the  lands  accordingly.  But,  when  by  the  statute  of  the  27th  Henry  VIII. 
the  possession  was  annexed  to  the  use,  as  the  use  thereby  became  merged  in 
the  land,  this  indirect  power  of  devising  lands  was  absolutely  lost.  The  32 
and  34  Hen.  VIII.  gave  a  power  to  devise  the  whole  of  lands  held  in  socage, 
and  two-thirds  of  lands  held  by  knight's  service.  The  12  Car.  II.  converted 
knight's  service  into  socage ;  and  thus,  all  landed  property,  except  that  which 
is  of  the  tenure  of  copyhold,  became  devisable.  But,  as  the  statute  of  uses 
preceded  the  statutes  of  wills,  it  does  not  necessarily  extend  to  them.  It  is 
true,  that  the  statute  of  uses  speaks  of  persons  seised  to  uses  by  virtue  of  wills : 
but  this  must  apply  either  to  those  lands,  which  were  devisable  by  custom; — 
as,  when  a  person  seised  of  lauds  devisable  by  custom,  devised  them  to  A.  and 
his  heirs,  to  the  use  of  B.  and  his  heirs: — or  to  uses  at  common  law; — as 
where  a  feoffment  was  made  to  A.  and  his  heirs,  to  the  use  of  B.  and  his  heirs, 
and  B.  devised  the  use.  To  uses  of  this  description  the  statute  extended;  but 
it  is  difficult  to  conceive  how  uses  created  under  the  testamentary  power  given 
by  the  statutes  of  wills  can  be  within  the  statute  of  uses.  It  is  said,  that 
though  the  law  will  not  force  the  operation  of  the  statute  of  uses  upon  devises 
to  which  it  is  the  testator's  intention  it  should  not  extend;  yet  it  will  apply  it 
to  those  cases  to  which  it  is  his  intention  it  should  extend.  This  opinion 
makes  it  depend  entirely  on  the  will  of  the  testator,  whether  the  statute  of  uses 
shall  or  shall  not  operate  upon  the  devises  of  his  will.  Thus,  if  a  devise  is 
made  to  the  use  of  A.  for  life,  with  remainders  over,  if  it  were  to  be  con- 
sidered as  a  limitation  under  the  statute  of  uses,  it  would  be  void,  for  want  of 
a  seisin  to  serve  the  uses.  It  cannot  therefore  be  the  testator's  intention  that 
it  should  operate  under  that  statute;  consequently  the  law  will  not  force  it 
under  that  statute,  but  leave  it  solely  to  its  effect  under  the  statutes  of  wills. 
But,  suppose  a  devise  to  A.  and  his  heirs,  to  the  use  of  B.  and  his  heirs,  that 
would  be  good  to  give  the  legal  fee  to  B.  as  a  limitation  under  the  statute  of 
uses.  The  testator  therefore  might  intend,  and  the  form  of  the  devise  shows 
he  did  intend,  to  raise  an  use  under  that  statute,  and  the  law,  in  conformity  to 
his  intentions,  extends  its  operation  to  the  devise.  But,  against  this  it  may  be 
argued,  that  a  statute  can  never  be  considered  as  relating  to  any  thing  which 
did  not  exist  at  the  time  of  its  passing;  and  therefore,  as  lands  were  not  de- 
visable till  some  years  after  the  statute  of  uses,  the  statute  of  uses  cannot  ex- 
tend to  uses  created  by  devise :  that  in  wills  the  testator's  intention  is  chiefly 
considered;  and  as  by  a  devise  to  A.  and  his  heirs,  to  the  use  of  B.  and  his 
heirs,  the  testator  shows  it  to  be  his  intention  that  B.  should  have  the  legal 
fee,  the  law  will  put  that  construction  on  the  devise,  and  give  it  that  operation. 
At  the  end  of  Mr.  Hillyard's  edition  of  Sheppard's  Touchstone,  there  is  a  very 
learned  opinion  of  the  late  Mr.  Booth  on  the  doctrine  of  uses.  In  two  copies 
which  the  editor  has  seen  of  this  opinion,  made  immediately  under  the  eye  of 

Mr. 


L.  3.  C.  8.  Sect.  463.     Of  Eeleases.  [272.  a. 

Mr.  Booth,  and  delivered  by  him  to  the  persons  in  whose  custody  they  now 
are,  and  also  in  a  copy  of  it  bequeathed  by  Mr.  Booth,  with  his  other  valu- 
able law  manuscripts,  to  Mr.  Holliday,  the  following  note  is  added  to  it. — 
"  P.  S.  Powers  under  wills  are  not  like  powers  under  conveyances  operating 
''  by  way  of  use.  The  execution  of  a  power  under  a  devise,  is  not  the  limita- 
"  tion  of  a  use ;  no,  not  where  the  devise  is  to  uses  :  as  where  there  is  a  devise 
"  to  /.  S.  and  his  heirs,  to  the  use  of  A.  for  life,  remainder  to  B.  in  tail,  with 
"  power  for  A.  to  limit  a  jointure,  or  lease,  or  charge;  here  there  will  be  no 
"  seisin  in  /.  S.  consequently  no  such  use  in  A.  or  B.  as  is  executed  by  the 
"  statute  of  uses ;  consequently,  the  execution  of  the  power  is  no  use ;  it 
"  operates  as  a  devise  under  the  statute  of  wills." — See  Popham  v.  Bampfeild, 

1  Yern.  79.  Burchett  v.  Durdant,  2  Vent.  312.  Broughton  v.  Langley,  2  Salk. 
679.  Gilb.  Uses,  281. — But  whether  a  devise  to  uses  operates  solely  by  the 
statute  of  wills,  or  by  that  statute  jointly  with  the  statute  of  uses,  is,  except 
where  the  devisee  to  uses  dies  in  the  lifetime  of  the  testator,  rather  a  matter  of 
speculation  than  of  use ;  as  it  is  now  settled,  that  an  immediate  devise  to  uses, 
without  a  seisin  to  serve  those  uses,  is  good ;  and  that  where  the  estate  is  de- 
vised to  one  for  the  benefit  of  another,  the  courts  execute  the  use  in  the  first  or 
second  devisee,  as  appears  to  suit  best  with  the  intention  of  the  testator. 

VIII.  2.  With  respect  to  copyhold  estates,  the  statute  of  uses  does  not  extend 
to  them,  as  it  is  against  the  nature  of  a  copyhold  tenure,  that  any  person  should 
be  introduced  into  the  estate  without  the  consent  of  the  lord.  Gilbert's 
Tenures,  170. 

VII [.  3.  With  respect  to  leases  for  years  ; — these  estates  are  not  executed 
by  the  statute.  But  this  must  be  understood  of  leases  actually  in  existence, 
at  the  time  of  their  being  assigned  to  the  use.  Therefore,  if  Al.  possessed  of 
a  lease  for  years,  grants  it  over,  or  assigns  it,  to  B.  and  C.  to  the  use  of  B. ; 
all  the  estate  is  in  B.  and  (J.,  and  D.  takes  only  a  trust,  or  equitable  estate. 
But  if  A.  being  seised  of  lands  in  fee,  makes  a  feoffment  to  the  use  of  B.  and 
C.  for  a  term  of  years,  this  term  is  served  out  of  the  seisin  of  the  feoffee,  and 
is  executed  by  the  statute. — It  is  the  same  if  he  bargains  and  sells  the  estate, 
of  which  he  is  seised  in  fee,  for  a  term  of  years.  Gilb.  Uses,  198.     Dyer,  369. 

2  Inst.  671.  .  ^    ^ 

Such  are  the  general  outlines  of  the  doctrine  of  uses ;  one  of  the  most  im- 
portant parts  of  the  law,  as  all  the  landed  property  of  the  kingdom  is,  either 
directly  or  indirectly,  regulated  by  it.  It  is  to  be  observed,  that  one  of  the 
chief  objects,  both  of  the  legislature  and  the  judicature  of  this  kingdom,  in 
their  regulations  upon  this  subject,  has  been,  on  the  one  hand,  to  guard  against 
those  restraints  upon  alienation,  which  are  incompatible  with  the  welfare  of  a 
free  and  commercial  country ;  and  on  the  other,  to  admit  of  reasonable  settle- 
ments and  provisions  being  made  for  wives  and  cliildren,  and  the  general  wants- 
of  families.  Experience  seems  to  show  that  they  have  accomplished  their 
object.  This  fully  answers  the  objections  which  foreigners  make  to  the  nature 
of  our  family  settlements,  that  we  exclude  the  ancestor,  whose  character  is 
known  to  us,  from  the  disposal  of  the  property ;  and  intrust  it  to  the  children, 
with  whom  we  must  be  perfectly  unacquainted. — So  detrimental  has  an 
unqualified  and  unlimited  power  of  settlement  been  found  even  in  France, 
that  it  was,  under  the  ancicn  regime,  a  question  there,  whether  it  would  not 
be  for  the  advantage  of  the  nation  at  large,  that  all  settlements  and  trusts 
should  be  abrogated.  This  question,  so  far  as  it  related  to  moveables,  was  by 
the  order  of  Louis  XV.  proposed  in  the  year  1744  by  the  Chancellor  D'Agues- 
seau  to  all  the  parliaments  and  superior  councils  of  France.  See  Questions 
conccrnant  les  Substitutions,  avec  les  Respoiises  de  touts  les  Parlemens  et  Cours 
Souveraiiis  du  Royaume,  et  les  Observations  de  31.  le  Chancel ier  D'Aguesseau 
stir  les  dits  Respoiises.  Toulouse,  1770.  And  see  also  Commentaire  de  V  Ordcm- 
nance  de  Louis  XY.  sur  l':s  >Sahstitiitions,  par  Jlons.  Furgole.  Paris,  1767. 

It 


272.  a.]  Of  Releases.     L.  3.  C.  8.  Sect.  464, 


Sect.  464. 


ANOTHER  cause  they  alleage,  that  if  such  land  bee  worth  fortie 
shillings  a  yeare,  ^c.  then  such  feoffor  shall  he  sworn  in  assise  and 
other  enquests  in  plees  reals,  and  also  in  plees  personals,  of  what  great 
sum  soever  the  plaintiffe  will  declare,  S^c.  And  this  is  hy  the  common 
law  of  the  layid.  Ergo,  this  is  for  a  great  cause.  Aiid  the  cause  is, 
for  that  the  law  ivill  that  such  feoffors  and  their  heires  ought  to  occupie, 
S^c.  and  take  and  enjoy  all  manner  of  profits,  issues,  and  revenues,  ^c. 
as  if  the  lands  were  their  oivn,  ivithout  interruption  of  the  feoffees,  not- 
withstanding such  feoffment.  Ergo,  the  same  law  giveth  a  privitie 
between  such  feoffors  and  the  feoffees  upon  confidence,  ^e.  for  which 
causes  they  have  said,  that  such  releases  made  by  such  feoffees  upon 
confidence  to  their  feoffor  or  to  his  heirs,  ^c.  so  oecupyiny  the  lands,  f 
shall  be  good  enough :  and  this  is  the  better  opinion,  as  it  seemeth. 
X  Quaere,  for  this  seemeth  no  law  at  this  day. 

(Ant.  156.  b.)  ~P  Y  *^^  statute  of  2  H.  5.  cap.  3.  statute  2,  it  is  enacted,  that, 

28  H.  8.  JD  in  three  cases,  he  that  passeth  in  an  enquest,  ought  to  have 

vfd  ^W  ^'>  lands  and  tenements  to  the  value  of  fortie  shillings,  viz.  First, 

cap.*  38."  "  upon  triall  of  the  death  of  a  man.     Secondly,  in  plea  reall  be- 

L'estat.  de  tweene  partie  and  partie.    And  thirdly,  in  plea  personall,  where 

21  E.  L  de^  ^]jg  (jgjj^  Qj.  ijjg  dammages  in  the  declaration  amount  unto  fortie 
in  assisis,  &c.  '    markes  (1).     And  it  is  worth  the  noting,  that  the  judges  that 

(Fortescu'e,  62.  a.  27  El.  c.  6.  Ant.  157.  a.) 


*  &c.  not  in  L.  and  M.  or  Roh.  |  This  paragraph  not  in  L.  and  M. 

f  &c.  added  in  L.  and  M.  and  Roh.      or  Roh. 

It  is  hoped,  that  the  importance  of  the  subject,  will  be  thought  a  sufficient 
apology  for  the  great  length  of  the  foregoing  note.  Lord  chief  baron  Gilbert's 
Essay  upon  Uses  and  Trusts,  considered  in  the  only  light  in  which  it  can  be 
considered  with  justice  to  its  author,  as  an  unfinished  sketch,  is  entitled  to 
great  commendation;  it  certainly  contains  several  most  profound  and  learned 
observations,  but  in  many  instances  is  very  defective  and  erroneous.  Its  in- 
trinsic value  is  greatly  increased,  by  Mr.  Sugden's  recent  edition  of  it.  The 
want  of  a  comprehensive  and  systematic  treatise  upon  uses  which  was  men- 
tioned in  a  former  edition  of  this  note,  is  now  supplied  by  Mr.  Sanders's  Essay 
on  Uses  and  Trusts.  The  account  given  in  that  work  of  the  Doctrine  of  Uses, 
as  it  stood  before  the  stat.  of  27  H.  8.  is  particularly  interesting.  The  doc- 
trine of  Powers  is  exhausted  by  Mr.  Sugden's  treatise  upon  them.  Had  the 
public  been  in  possession  of  these  works  before  this  annotation  was  submitted 
to  them,  it  would  not  have  been  attempted. — [Note  231.] 

(1)  By  35  H.  8.  c.  6.  inhabitants  of  corporate  towns  worth  40s.  in  goods, 
may  try  felonies  in  sessions  and  gaol  deliveries  for  such  towns,  and  this  is  not 
repealed  by  subsequent  statutes  concerning  jurors.  1  Vent.  366.  The  4th  and 
5th  W.  and  M.  c.  24.  requires  that  all  trials  in  the  courts  at  Westminster,  or 
before  the  judges  of  nisi  prius,  oyer  and  terminer,  or  gaol  delivery,  or  general 
sessions  of  the  peace,  must  be  by  jurors,  each  worth  \0l.  2'>er  annum,  of  free- 
hold or  copyhold  in  the  same  county,  if  the  trial  be  in  England;  and  by  jurors 

worth 


L.  3.  C.  8.  Sect.  464.       Of  Releases.       [272.  a.  272.  D. 

were  at  the  making  of  that  statute  did  construe  it  by  equitie :  for 
where  the  statute  speakes  in  the  disjunctive  debt  or  dammages, 
they  adjudged  that  where  the  debt  and  damages  amounted  to  9  H.  5.  fol.  5. 
fortie  markes,  that  it  was  within  the  statute.  Fortescue  [/]  U]  Fortesc. 
saith,  Ubi  damna  vel  dehitum  mpersonalihus  actlonihus  non  exce- 
dunt  quadraginta  marcasmonefse  Anglkanae,  June  nonrequiriturj 
quodjuratores  in  actlonihus  hujusmodi  zanhim  expendere possint : 
habebunt  tamen  terram  vel  reddiltim  ad  valorem  competentemjux- 
ta  discretionem  justitiariorum,  &c.  And  forasmuch  as  at  the  time 
of  the  making  of  this  statute,  the  greater  part  of  the  lands  in 
England  in  those  troublesome  and  dangerous  times  (when  that 
unhappie  controversie  betweene  the  houses  of  York  and  Lan- 
caster was  begun)  were  in  use;  and  the  statute  was  made  to 
remedie  a  mischiefe,  that  the  sheriffe  used  to  return 

t  0,7^.1  B@°'simple  men  of  small  or  no  understanding  ;  and  15  H.  7. 13.  b, 
b.  J  therefore  the  statute  provided  that  hee  should  returne  l^^l'^'^J'^^' 
sufficient  men  :  and  albeit  in  law  the  land  was  the  feof- 
fees, yet  for  that  they  had  it  but  upon  trust,  and  cesty  que  use 
tooke  the  whole  profits,  as  our  author  here  saith,  and  in  equity 
and  conscience  the  land  was  his,  therefore  the  judges,  for  ad- 
vancement and  expedition  of  justice,  extended  the  statute  (against 
the  letter)  to  cesfy  que  ?(se,  and  not  to  the  feoffees  (1). 

[n]  But  note,  if  a  man  hath  freehold  pirr^enne  de  aider  vie,  or  [»]  3  H.  6.  39. 
is  seised  in  his  wife's  right,  and  is  returned  on  a  jurie,  yet  if  after  ^^^'^1%^^' 
he  be  returned,  cesty  que  vie,  or  his  wife  die,  hee  may  be  chal-  (^^^{^^  {^-j^  a.) 
lenged :  and  so  it  is  if  after  the  returne  the  lands  be  evicted. 

"  And  this  is  by  the  common  law."  Here  three  things  are  to  be 
observed.  First,  that  the  surest  construction  of  a  statute,  is  by 
the  rule  and  reason  of  the  common  law.  Secondly,  that  uses  were 
at  the  common  law.  Thirdly,  that  now  seeing  the  statute  [(/]  [g]  27  H.  8. 
of  27  //.  8.  cap.  10.  which  hath  beene  enacted  since  Littleton  cap.  10. 
wrote,  hath  transferred  the  possession  to  the  use,  this  case  hold- 
eth  not  at  this  day  ;  but  this  latter  opinion  before  that  statute 
was  good  law,  as  Littleton  here  taketh  it. 

"  The  same  law  giveth  a  privitie.  &c."  Hereof  it  followeth,  (8  Rep.  42.  b.) 
that  when  the  law  gives  to  any  man  any  estate  or  possession, 
the  law  giveth  also  a  privitie  and  other  necessaries  of  the  same, 
and  Littleton  concludeth  it  with  an  illative,  ergo  the  same  law 
giveth  a  privitie,  which  is  verie  observable  for  a  conclusion  in 
other  cases. 

And  the  (quaere)  here  made  in  the  end  of  this  Section  is  not  (Ante,  156.  b.) 
in  the  originall,  but  added  by  some  other,  and  therefore  to  be 
rejected. 

Also  since  Littleton  wrote,  the  said  statute  of  2  H.  5,  is  altered  :  27  El.  cap.  6. 
for  where  that  statute  limited  fortie  shillings,  now  a  latter  statute 
hath  raised  it  to  foure  pounds,  and  so  it  ought  to  be  contained  in 
the  venire  facias. 

Nota 

worth  6Z.  per  annum,  if  in  Wales  ;  and  talesmen  must  have  5?.  per  anmim  in 
Eno-land,  and  3/.  per  annum  in  Wales,  excepting  strangers  returned  propter 
medietatem  linguse. — But  by  the  4th  and  5th  Ann.  c.  16.  no  hundreders  are 
required  except  in  prosecutions  criminal,  and  on  penal  statutes,  because  in 
other  cases  the  venire  shall  be  de  corpore  comitatiis. — [Note  232.] 

(1)  See  lord  Bacon's  reading  on  the  statute  of  uses,  p.  8,  accord,  edit.  1785. 


272.  b.]  Of  Releases.  L.  3.  C.  8.  Sect.  ^65. 

PI.  Com.  352.  b.  Kota,  an  use  is  a  trust  or  confidence  reposed  in  some  other, 
in  Delamere's  which  is  not  issuing  out  of  the  land,  but  is  a  thing  collaterall, 
Lib!'l^°fol  121  annexed  in  privitie  to  the  estate  of  the  land,  and  to  the  person 
122. 127.  140.  touching  the  land,  scilicet,  thsit  cesty  que  use  shall  take  the  profit, 
in  Chudleye's  and  that  the  terre-tenant  shall  make  an  estate  according  to  his 
M%8  78  '  *  direction.  So  as  cesfy  que  use  had  neither  Jits  in  re,  nor  jus  ad 
Lib.  6.'fol.'64.  rem,  but  only  a  confidence  and  trust,  for  which  he  had  no  remedie 
Lib.  7.  fol.  13.  by  the  common  law,  but  for  breach  of  trust,  his  remedy  was  only 
hj  subpcena  in  chancerie ;  and  yet  the  judges,  for  the  cause 
aforesaid,  made  the  said  construction  upon  the  said  statute. 

Now  how  jurors  shall  be   returned,  both  in  common  plees, 

and  also  in' plees  of  the  crowne,  and  in  what  manner  evidence 

shall  be  given  to  them,  and  how  they  shall  be  kept,  untill  they 

Fortesc.  cap.  25,  give  their  verdict,  you  may  read  in  Fortescue,  and  therefore 

26,  27.  need  not  be  here  inserted. 


Sect.  465. 


ALSO,  releases  according  to  the  matter  in  fact,  sometimes  have  their 
effect  by  force  to  enlarge  the  state  of  him  to  whom  the  release  is  made. 
(1)  As  if  I  let  certain  e  land  to  one  for  terme  of  yeares,  hy  force  ivhereof 
hee  is  in  possession,  and  after  I  release  to  him  all  the  right  ivhich  I  have 
in  the  land  ivitJiout  putting  more  words  in  the  deed,  and  deliver  to  him  the 
deed,  then  hath  he  an  estate  hut  for  terme  of  his  life.  And  the  reason  is, 
for  that  when  the  reversio7i  or  remaynder  is  in  a  man  ivho  willhy  his  release 
inlarge  the  estate  of  the  tenant,  ^c.  hee  shall  have  no  greater  estate,  hut 
in  such  manner  and  form  as  if  such  lessor  were  seised  in  fee  (il'n'avera 
pluis  greinder  estate,  mes  en  *  tiel  manner  et  forme  sicome  f  tiel  feoffor 
fuit  seisie  en  fee)  and  hy  his  deed  will  make  an  estate  to  one  in  a  certain 
forme,  and  deliver  to  him  seisin  hy  force  of  the  same  deed :  if  in  such  deed 
of  feoff ement  there  he  not  any  word  of  inheritance,  %  then  he  hath  hut  an 

estate 

*  tiel  — la,  L.  and  M.  and  Rah.  |  &c.  added  in  L.  and  M.  and  Roh, 

■j"  si  added  in  L.  and  M.  and  Roll. 

(1)  Here  Littleton  treats  of  releases  which  operate  by  enlargement  of  the 
estate  of  the  releasee.  To  make  releases  operate  in  this  manner,  it  is  necessary 
that  the  releasee,  at  the  time  the  release  is  made,  should  be  in  actual  possession 
of,  or  should  have  a  vested  interest  in,  the  lands  intended  to  be  released;  that 
there  should  be  a  privity  between  him  and  the  releasor ;  and  that  the  possession 
of  the  releasee  should  be  notorious.  Hence  it  is  said,  that  a  person,  who  is 
tenant  by  sufferance,  is  not  capable  of  a  release  to  operate  by  enlargement. 
But  a  tenant  in  dower  or  by  the  courtesy  is  capable  of  that  species  of  release, 
as  they  have  notoriety  of  possession,  and  privity  of  estate,  with  respect  to  the 
releasor.  See  Roll.  Abr.  400,  401.  and  Gilb.  Ten.  To  the  circumstance  rc- 
<juiring  the  possession  of  the  releasee  to  be  notorious,  the  statute  of  uses 
furnishes  an  exception  exemplified  in  the  effect,  which  is  allowed  to  the  con- 
veyance by  bargain  and  sale  for  a  year,  and  a  release  to  enlarge  that  estate. 
At  the  common  law,  till  entry  or  attornment,  the  lessee  was  not  capable  of  a 
release.  A  bargainee  has  a  vested  interest  immediately  after  the  execution  of 
the  bargain  and  sale,  without  any  entry,  attornment,  or  other  act  of  notoriety 
whatsoever. — [Note  233.] 


L.  3.  C.  8.  Sect.  4cQ5.  Of  Releases.  [272.  b.  273.  a.  &b, 

estate  for  life  ;  and  so  it  is  in  such  release  made  \\  hy  those  in  the  reversion 
or  in  the  remainder.  For  if  I  let  land  to  a  man  for  terme  of  his  life,  and 
after  I  release  to  him  all  my  right  ivithout  more  saying  in  the  release,  his 
estate  is  not  enlarged.  But  if  I  release  to  him  and  to  his  heires,  then  he 
hath  a  fee  simple;  and  if  I  release  to  him  and  to  his  he  ires  of  his  bodie 
begotten,  then  hee  hath  a  fee  taile,  ^-c.  And  so  itbehoveth  to  siJecifie  in 
the  deed  what  estate  hee  to  whom  the  release  is  made  shall  have- 

IT  is  a  certaine  rule,  that  when  a  release  doth  enure  by  way  of  ^let.  lib.  5. 
enlarging  of  an  estate,  that  there  must  be  privitie  of  estate,  as  ^'^^^  J  ^^ 
betweene  lessor  and  losses,  donor  and  donee.    For  if  A.  22  E.  4.  4. 

tS73.1  make  a  lease  to  i?.  for  life,  and  the  B®""  lessee  niaketh  a 
a.     J   lease  for  yeares,  and  after  A.  releaseth  to  the  lessee  for  i^°^^-  -^^-  '^•) 
yeares,  and  his  heires,  this  release  is  void  to  enlarge 
the  estate,  because  there  is  no  privity  betweene  A.  and  the  les- 
see for  yeares. 

If  a  man  make  a  lease  for  twenty  yeares,  and  the  lessee  make  (Ant.  270.  a.) 
a   lease   for  ten  yeares,  if  the  first  lessor  doth  release  to  the 
second  lessee,  and  his  heires,  this  release  is  void  for  the  cause 
aforesaid. 

For  the  same  cause,  if  the  donee  in  taile  make  a  lease  for  his 
owne  life,  and  the  donor  release  to  the  lessee  and  his  heires,  this 
release  is  void  to  enlarge  the  estate. 

And  as  privitie  is  necessarie  in  this  case,  so  privity  only  is  not 
sufficient.     As  if  an  infant  make  a  lease  for  life,  and  the  lessee  (Ant.  264.  a. 
granteth  over  his  estate  with  warranty,  the  infant  at  full  age  Post.  285.  b. 
bringeth   a  dum  fruit  infra  aetatem,  the  tenant  voucheth  his  '        ■' 

grantor,  who  entereth  into  warranty,  the  demandant  releaseth 
to  him  and  his  heires ;  here  is  privitie  in  law,  and  a  tenancie  in 
supposition  of  law ;  and  yet  because  hee  in  rei  veritate  hath  no 
estate,  it  cannot  enure  to  him  by  way  of  enlargement ;  for  how 
can  his  estate  be  enlarged  that  hath  not  any  ? 

If  a  tenant  by  the  courtesie  grant  over  his  estate,  yet  he  is 
tenant  as  to  an  action  of  waste,  attornement,  &c.  and  yet  a  re-  (Ant.  53.  a. 
lease  to  him  and  his  heires  cannot  enure  to  enlarge  his  estate  that  ^^-  ^-^ 
hath  no  estate  at  all. 

But  if  a  man  make  a  lease  for  yeares,  the  remainder  for  life,  a 
release  by  the  lessor  to  the  lessee  for  yeares,  and  to  his  heires, 
is  good,  for  he  that  hath  both  a  privity  and  an  estate ;  and  the 
release  also  to  him  in  the  remainder  for  life  and  his   heires,  is  (2  Roll.  Abr. 
good  also.  400.) 

If  I  grant  the  reversion  of  my  tenant  for  life  to  another  for         pt'i-V,v  Jt* 
life,  now  shall  I  not   have  an  action  of  waste  (2)  :  but  if  I  re-  FincluUri. 

lease  to   the  grantee  for  life,  and  his  heires,  now  he  41  E.  3.  17.  a. 

t 3 73.1   B@°"  hath  the  fee  simple,  and  shall  punish  the  waste  Lnt^si '•"  ) 
b. '  J   done  after  (1).  ^   °  " 

It  is  further  to  be  observed,  that  to  a  release  that 

enureth 

II  hy  those  not  in  L.  and  M.  or  Roh. 


(2)  Because  no  person  is  entitled  to  an  action  of  waste,  but  he  who  has 
an  estate  immediate  in  remainder  or  reversion,  expectant  on  the  estate  of  the 
person  committing  waste.     See  ant.  note  '2.  to  page  218.  b. — [Note  284.] 

(1)  By  the  release  the  tenant  for  life  in  reversion  obtains  the  immediate 
reversion  in  fee. — [Note  235.] 


273.  b.]  Of  Releases.     L.  3.  C.  8.  Sect.  465. 

enureth  by  way  of  enlargement  of  tlie  estate,  there  is  not  only 

required  privity,    as  hath  beene  said,  and  an  estate  also,  but 

sufficient  words  in  law  to  raise  or  create  a  new  estate.     If  a  man 

make  a  lease  to  A.  for  terme  of  the  life  of  B.  and  after  release 

(Ant.  42.  a.)        to  A.  all  his  right  in  the  land,  by  this  A.  hath  an  estate  for 

terme  of  his  owne  life  ;  for  a  lease  for  terme  of  his  owne  life  is 

higher  in  judgment  of  law  than  an  estate  for  terme  of  another 

man's  life. 

16  H.  6.    _  If  a  feme  covert  be  tenant  for  life,  a  release  to  the  husband 

2'>  E*^ 2*' Re'-        ^^^  ^^^  heires  is  good,  for  there  is  both  privity  and  an  estate  in 

lease.   Statham.  the   husband,  whereupon  the  release  may  sufficiently  enure  by 

[a]  H.  4.  G.  -way  of  enlargement  [a] ;  for  by  the  intermarriage  he  gaineth  a 

is'Tl' T''  '^'^'  freehold  in  his  wife's  right. 

22  Ass.'  12. 

\\  M-  7/  19-  a  Jill  tj^e  right."     Vide  Sect.  650. 

10  H.  6.  11.  '^ 

(Post.  299.  a. 

Ant.  270.  b.)  "  Fo7-  terme  of  yeares."    So  it  is  if  a  release  be  made  to  tenant 

by  statute  staple,  or  merchant,  or  tenant  by  elegit,  as  hath  beene 
said  :  and  so  likewise  to  gardeine  in  chivalrie  which  holdeth  ia 
for  the  value,  by  him  in  the  reversion  of  all  his  right  in  the  land, 
by  this  a  freehold  passeth  for  the  life  of  him  to  whom  the  release 
is  made,  for  that  is  the  greatest  estate  that  can  passe  without 
apt  words  of  inheritance. 

If  a  man  make  a  lease  for  ten  yeares,  the  remainder  for  twenty 
yeares,  he  in  the  remainder  releaseth  all  his  right  to  the  lessee, 

(1  Leo.  303. 323.  he  shall  have  an  estate  for  thirty  yeares;  for  one  chattle  cannot 

Ant.  193.  b.)        drowne  another,  and  yeares  cannot  he  consumed  in  yeares. 

"  Biit  if  I  release  to  him  and  to  his  heires,  d-c."     Here  it  is  to 
bee  observed,  that  when  a  release  doth  enure  by  way  of  enlarge- 
ment of  an  estate,  no  inheritance  either  in  fee  simple  or  fee  taile, 
can  passe  without  apt  words  of  inheritance. 
9  Eliz.  Dier,  But  there  is  a  diversity  betweene  a  release  that  enureth  by  way 

263.  10  Eliz.  of  enlargement  of  the  state  and  by  way  of  milter  V estate  (2)  ;  for 
Litt  Hb^'s  fol.  when  an  estate  passeth  byway  of  mitter  F  estate,  there  sometime 
68,  69,  70.  b.  there  need  not  any  words  of  inheritance.  As  if  a  joynt  estate  be 
130.  b.  made  to  the  husband  and  to  his  wife,  and  to  a  third  person  and 

to  theire  heires,  the  third  person  releaseth  all  his  right  to  the 
husband,  this  shall  enure  by  way  of  mitter  V estate,  and  not  by 
way  of  enlargement  of  the  estate,  because  the  husband  had  a 
See  before  in  the  fee  simple,  and  needeth  not  to  have  any  words  of  inheritance, 
chapter  of  Fee  go  it  is  if  the  release  had  been  made  to  the  wife. 
[6^40^  3  41  t^J  ^^  there  be  three  joyntenants,  and  one  release  to  one  of 
46  E.  .3.  the 

19  H.  6.     33  H.  6.  5.     10  E.  4.  3. 

(2)  Here  the  release  operates  by  mitter  V estate;  which  is,  where  two 
persons  come  in  by  the  same  feudal  contract,  as  joint-tenants  or  coparceners, 
and  one  of  them  releases  to  the  other  the  benefit  of  it.  In  releases  which 
operate  by  this  last  mode,  the  releasee  being  supposed  to  be  already  seized  of 
the  inheritance  by  virtue  of  the  former  feudal  contract,  and  the  release  only 
operating  as  a  discharge  from  the  right  or  pretension  of  another  seized  under 
the  same  contract,  words  of  inheritance  in  the  release  are  useless;  but,  where 
the  release  operates  by  enlargement,  the  releasee  having  no  such  previous  in- 
heritance, and  fiefs  being  either  for  life  or  in  fee,  as  they  are  originally  granted, 
the  release  gives  the  estate  to  the  releasee  for  his  life  only,  unless  it  be  ex- 
pressly made  to  him  and  his  heirs. — [Note  236.] 


L.  3.  C.  8.  Sect.  466.     Of  Eeleases.      [273.  b.  274.  a. 

the  other  all  his  right,  this  cnureth  by  way  of  miiter  Vestate, 
and  passeth  the  whole  fee  simple  without  these  words  (heires.) 
But  if  there  be  two  joyntenants,  and  the  one  of  them  release 
all  his  right  to  the  other,  this  doth  not  to  all  purposes  enure  by 
way  of  mitter  Testate,  for  it  maketh  no  degree,  and  hee  to  whom 
the  release  is  made  shall  for  many  purposes  be  adjudged  in  from 
the  first  feoffor,  and  this  release  shall  vest  in  the  other  joynten- 
ant  without  these  words  (heires). 

But  if  there  be  two  coparceners,  and  the  one  release  all  his  10  E.  4,  3.  b. 
right  to  the  other,  this  shall  enure  by  way  of  mitter  Testate,  and  ^^.     ^^  **'' 
shall  make  a  degree,  and  without  these  words  (heires)  shall  passe  ur.  si. 
the  whole  fee  simple.    And  it  is  to  be  observed,  that  to  releases  31  H.  4.  S. 
that  enure  by  way  of  ^n'ttter  Testate,  there  must  be  privity  of  q**p^-^^'T^. 
estate  at  the  time  of  the  release.  2^3    '        ' 

If  two  coparceners  be  of  a  rent,  and  the  one  of  them  take  the  (2Roll.Abr.403. 
ter-tenant  to  husband,  the  other  may  release  to  her,  notwith-  1*^  ^-  '^-  2-  b.) 
standing  the  rent  be  in  suspence,  and  it  shall  enure  by  way  of 
mitter  Testate,  and  she  may  release  also  to  the  ter-tenant,  and 
that  shall  enure  by  way  of  extinguishment :  but  if  she  release 
to  her  sister  and  to  her  husband,  it  is  good  to  bee  scene  how  it 
shall  enure. 

Littleton  having  now  spoken  of  releases  that  enure  by  way  of  Vid.  Litt.  fol. 
enlargement  of  the  estate,  and  of  I'eleases  that  enure  by  way  of  fo'ij  4  c  \ 
mitter  Testate,  proceedeth  to  releases  that  enure  by  way  of  mitter  (Pos't.  230.  a.) 
le  droit.     So  as  of  that  which  hath  beene  and  shall  bee  said  by 
our  author  of  releases,  it  appeareth  that  some  doe  enure  by  way 
of  enlargement  of  estate,  some  by  way  of  mitter  Testate,  some 
by  way  of  mitter  le  droit,  by  way  of  entrie  and  feoffment,  and 
some  by  extinguishment. 


["I^-] 


s®-  Sect.  466. 


A  LSO,  sometimes  releases  shall  enure  de  mitter,  ayid  vest  tlie  right  of 

him  ivhich  makes  the  release  to  him  to  whom  the  release  is  made.  A% 

if  a  man  he  disseised,  and  he  releaseth  to  his  disseisor  all  his  right,  hi 

this  case  the  disseisor  hath  his  right,  so  as  where  before  his  state  was 

wrongfully  noio  by  this  release  it  is  made  lawfull  and  right  (1). 

"  A  ND  he  releaseth  to  his  disseisor,  &c."     This  release  so  put- 

teth  the  right  of   the  disseisee  to  the  disseisor,  that  it 

changeth  the  quality  of  the  estate  of  the  disseisor ;  for  where  his 

estate 


(1)  Here  Littleton  treats  of  releases  which  operate  by  miiter  le  droit.  Re- 
leases of  this  kind  must  be  made  either  to  the  disseisor,  his  feoflfce,  or  his  heir. 
In  all  these  cases  the  possession  is  in  the  releasee ;  the  right  in  the  releasor ; 
jind  the  uniting  the  right  to  the  possession  completes  the  title  of  the  releasee ; 
but  the  different  degrees  of  title  in  the  disseisor,  his  feoffee,  or  his  heir,  give 
the  releases  made  to  them  different  operations.  They  all  agree  in  this  respect, 
that  no  privity  is  required,  or  indeed  can,  from  the  nature  of  the  case,  exist 
between  them  and  the  releasor. — [Note  237] 


274.  a.  274.  b.]       Of  Releases.      L.  3.  C.  8.  Sect.  467. 

estate  was  before  ■wroagfull,  it  is  bj'  this  release  made  lawfull. 
But  how  farre,  aud  to  what  respects  his  estate  is  changed,  stall 
be  said  hereafter  in  this  chapter  in  his  proper  place. 


^  Sect.  467. 

^UT  here  note,  that  when  a  man  is  seised  in  fee  simple  of  any  lands 
or  teyiements,  and  another  ivill  release  to  him  all  the  right  ivhieh  he 
hath  in  the  same  tenements,  lie  needeth  not  to  speake  of  the  heires  of 
him  to  whom  the  release  is  made,  for  that  he  hath  a  fee  simple  at  the 
time  of  the  release  made.  For  if  the  release  was  made  to  him  *  for  a 
day,  or  an  hour,  this  shall  he  as  strong  to  him  in  laiv  as  if  he  had  re- 
leased to  him  and  his  heirs.  For  lohen  his  right  was  once  gone  from 
him  hy  his  release  without  any  condition,  ^c.  to  him  that  hath  the  fee 
sim]}le,  it  is  gone  for  ever. 

"  TTE  needeth  not  to  speahe  of  the  heires,  &c."  And  the  reason 
of  Littleton  hereof  is,  for  that  the  disseisor  hath  a  fee  simple 
at  tlie  time  of  the  release  made.  And  this  appeareth  by  that 
(Post.  280.  a.)  which  hath  beene  said  before,  so  as  regularly  hee  that  hath  a  fee 
simple  at  the  time  of  the  release  made  of  a  right,  &c.  needeth 
not  speake  of  his  heires. 


Vide  6  E.  3.17. 
12  E.  4.  tit. 
Descent,  F.  29. 


(Ant.  252.  a.) 


" Fo7'  if  the  release  u-as  made  to  him  for  a  day,  d'c."  For 
the  diversity  is  betweene  a  release  of  part  of  the  estate  of  a 
right,  and  between  a  release  of  a  right  in  part  of  the  land.  And 
therefore  Litthton  here  saith,  that  a  release  of  a  right  for  a  day 
or  an  houre  is  of  as  good  force,  as  if  he  had  released  his  right 
to  him  and  his  heires.  But  if  a  man  be  disseised  of  two  acres, 
he  may  release  his  right  in  one  of  them,  and  yet  enter  into 
the  other. 


''  Without  any  1^^  condition,  &c."  Herein  is  im-  FQT'-i, ~| 
plyed  two  diversities  :  first,  betweene  the  quantity  of  |_  b.  j 
the  estate  in  a  right,  and  the  quality  thereof;  for  albeit 
the  disseisee  cannot  release  part  of  the  estate,  as  hath  becnc 
said,  yet  may  he  release  his  right  upon  condition,  as  here  it  ap- 
peareth by  Littleton  [c],  and  it  agreeth  with  our  bookes. 

Also  here  is  another  diveisity  betweene  a  right,  whereof  Lit- 
tleton putteth  his  case,  which  is  favoured  in  law,  and  a  condition 
created  by  the  party  which  is  odious  in  law,  for  that  it  defeateth 
estates.  And  therefore  if  a  condition  be  released  upon  condi- 
tion, the  release  is  good,  and  the  condition  void. 

What  things  may  be  done  upon  condition  is  too  large  a  matter 

to  handle  in  this  place,  our  author  having  treated  of  Conditions 

before  :  only  to  give  a  touch  of  some  things  omitted  there  shall 

suffice.     An  espresse  manumission  of  a  villeine  cannot  be  upon 

condition,  for  once  free  in  that  case,  and  ever  free ;  also  an 

attornment  to  a  grantee  upon  condition,  the  condition  is  void 

because  the  grant  is  once  settled.    But  this  is  to  be  understood  of 

Rot.  Parliament  a  condition  subsequent,  and  not  of  a  condition  precedent;  for 
18  H.  6.  num.  ^  '  ^ 

29  Ap.  Gwilliam's  case.     10  E.  3.  cap.  2.     3  H.  7.  f.  6. 

in 
*  and  to  his  heirs  added  in  L.  and  M.  and  Rob. 


[c]  4  E.  2. 
Release,  50. 
43  Ass.  12. 
17  Ass.  2. 
31  Ass.  13. 
21  H.  24. 


(6  Rep.  62.  a. 
Post.  297.  a. 
.300.  b.) 


L.  3.  C.  8.  Sect.  468-69.     Of  Releases.     [274.  b.  275.  a. 

iu  both  those  cases  the  condition  precedent  is  good.  But  letters 
patents  of  denization  made  to  an  alien,  may  be  cither  upon 
(■ondition  subsequent  or  precedent ;  and  so  may  the  king  make 
a  charter  of  pardon  to  a  man  of  his  life  upon  condition,  as  is 
abovesaid. 


Sect.     468.  (2  1loll.Abr.400.) 

jDUT  ivhere  a  man  hath  a  reversion  in  fee  simple  (Mcs  lou  *  homead 
un  reversion  in  fee  simple),  or  a  remainder  in  fee  simple,  at  the  time 
of  the  release  made,  there  if  he  will  release  to  the  tenant  for  years,  or 
for  life,  or  to  the  tenant  in  taile,  hee  ought  to  determine  the  estate  which 
he  to  whom  the  release  is  made  shal  have  hy  force  of  the  same  release, 
for  that  such  release  shall  enure  to  enlarge  the  estate  of  him  to  ivhom 
the  release  is  made  f  (1). 

Of  this  sufl&cient  hath  beene  said  before. 


Sect.  469. 

J)  TIT  otherwise  it  is  ivhere  a  man  hath  hut  a  right  to  the  land,  and  hath 
nothing  in  the  reversion  nor  in  the  remainder  in  deed.  For  if  such 
a  man  release  all  his  right  to  one  which  is  tenant  in  the  freehold,  all  his 
right  is  gone,  albeit  no  mention  be  made  of  the  heires  of  him  to  ivhom 
the  release  is  made.     For  if  Ilet  lands  \\  to  one  for  terme  of 
r375."|  his  life,  if  I  after  release  J|@^  to  him  to  enlarge  his  estate,  it 
L    a.     J  hehoveth  that  I  release  to  him  and  to  his  heirs  of  his  body  en- 
gendered, §  or  to  him  and  his  heires,  or  by  these  ivords,  To  have 
and  to  hold  to  him  and  to  his  heires  \.  of  his  bodie  engendred,  %  or  to  the 
heirs  male  of  his  bodie  engendred,  or  such  like  estates,  or  otherwise  hee 
hath  no  greater  estate  than  hee  had  before. 


"■  rp  0  one  wJio  is  tenant  of  the  freeJiohV     Here  it  appeareth,  (Ant.  2G6.) 

that  to  a  release  of  right,  made  to  any  that  hath  an  estate 
of  freehold  in  deed  or  in  law,  no  privitie  at  all  is  requisite.  As  if 

a  disseisor 

*  home — un,  L.  and  M.  and  Roh.  §o?-  not  in  L.  and  JM.  or  Roh. 

f(fcc.    added   in   L.    and   M.    and  \mah   added   in   L.  and   M.  and 

Roh.  Roh.                                      ^,.    ,    7 

II 09'  tenements  added  in  L.  and  M.  lor  to  the  heirs  male  of  his  body 

and  Roh.  engendred,  not  in  L.  and  M.  or  Roh. 


(1)  All  releases /)e?-  mitter  le  droit  also  agree  in  this,  that  words  of  inherit- 
ance are  not  necessary  in  releases  which  operate  by  mitter  le  droit ;  as  the  dis- 
seiso-,  to  whom,  or  to  whose  feoffee,  or  heir,  that  release  is  made,  acquires  the 
fee  by  the  disseisin,  and  therefore  cannot  take  it  under  the  release.  In  this 
respect  they  differ  from  releases  by  enlargement. — [Note  238.] 


275.  a.  215.  h.]       Of  Releases.       L.  3.  C.  8.  Sect.  470. 

a  disseisor  make  a  lease  for  life,  if  the  disseisee  release  to  the 
lessee,  this  is  good,  and  directly  within  the  rule  of  Littleton, 
because  the  lessee  hath  an  estate  of  freehold,  albeit  there  be  no 
privitie.  And  so  it  is  if  a  disseisor  make  a  lease  to  A.  and  his 
heires  during  the  life  of  B.  and  A.  dieth,  a  release  by  the  dis- 
seisee to  his  heire,  before  hee  doth  actually  enter,  is  good. 


(Post.  327.) 


Sect.  470. 


J)  TIT  if  my  tenant  for  life  letteth  the  same  land  over  to  another  for 
terme  of  the  life  of  his  lessee,  the  reinainder  to  another  in  fee,  now  if 
I  release  to  him  to  whommy  tenant  made  a  lease  for  terme  of  life,  I  shall 
lee  barred  for  ever  (ore  si  jeo  relessa  a  celuy  a  que  mon  tenant  lessast 
pur  terme  de  vie,  §  ceoserra  barre  a  touts  jours),  albeit  that  no  mention 
he  made  of  his  heires,  for  that  at  the  time  of  the  release  made  I  had  no 
reversion,  but  only  a  right  to  have  the  reversion.  For  by  such  a  release, 
and  the  remainder  over,  which  my  tenant  made  in  this  case,  my  rever- 
version  loas  discontinued,  \\  ^c.  and  this  release  shall  enure  to  him  in  the  re- 
mainder, to  have  advantage  of  it,  astvell  as  to  the  tenant  for  terme 
of  life  (1). 

(Post.  279.)  T  ITTLETON  having  before  spoken  of  releases  which  enure 

by  way  of  enlargement,  by  way  of  mitter  V estate,  and  by  wav 
of  mitter  le  droit,  here  speaketh  of  a  release  of  a  right  which  in 
some  respects  enureth  by  way  of  extinguishment;  as  in  this  case 
which  Littleton  here  putteth,  the  release  to  the  lessee  of  the  lessee 
doth  not  enure  by  way  of  mitter  le  droit,  for  then  should  he  have 
the  whole  right,  but  as  it  were  by  way  of  extinguishment,  in 
respect  of  him  that  made  the  release,  and  that  it  shall  enure  to 
him  in  the  remainder,  which  is  a  qualitie  of  an  inherit- 
ance B@°"  extinguished.  But  yet  the  right  is  not  extinct  rQVS."! 
in  deed,  as  shall  be  said  hereafter  in  this  chapter.         L     '^^     J 

(Post.  327.  b.)  "  My  reversion  was  discontinued,  cCr."  Here  discontinue  is  in 

a  large  sense  taken  for  divested,  though  the  entrie  of  the  lessor 
be  not  taken  away,  which  is  implyed  in  this  (c&c). 

Sect. 

§  ceo — jeo,  L.  and  M.  and  Roll.  \\  &c.  not  in  L.  and  M.  or  Roh. 

(l)Here  Littleton  shows  the  operation  of  a  release  ^er  mitter  le  droit,  when 
made  to  the  feoifee  of  the  disseisor.  The  feoffee  is  in  by  title  ;  his  estate  can- 
not be  devested  or  disaffirmed,  but  by  an  act  equal  to  that  which  created  it. 
A  release  does  not  affect  his  possession  or  title,  but  discharges  him  from  the 
right  of  the  releasor  ;  so  that  whether  the  whole  fee  is  in  the  feoffee,  or  carved 
out  into  particular  estates,  it  remains  unaltered  by  the  release,  except  as  it  is 
discharged  by  it  from  the  right  of  the  releasor. — [Note  239.] 


L.  3.  C.  a  Sect,  471,  472.       Of  Eeleases.  [275.  b. 


Sect.  471. 

TpOR  to  this  intent  the  tenant  for  terme  of  life  and  he  in  the  remainder 

are  as  one  tetiant  in  law,  and  are  as  if  one  tenant  were  sole  seised 

in  his  demesne  as  of  fee  at  the  time  of  such  release  made  unto  him,  tj-c. 

"  A  RE  as  one  tenant  in  laiv."  Which  is  certainly  true  in  this 
case  of  remainder,  and  so  it  is  also  in  case  of  a  reversion ; 
as  if  a  disseisor  make  a  lease  for  life,  and  the  disseisee  doth 
release  all  his  right  to  the  lessee,  this  release  shall  enure  to  him 
in  the  reversion,  albeit  they  have  severall  estates,  as  hath  beene 
said,  which  is  implyed  in  this  (tCr.) 

But  if  a  disseisor  make  a  lease  for  life,  the  remainder  in  fee, 
albeit  they  to  some  purposes  (as  here  is  said)  are  as  one  tenant 
in  law,  yet  if  the  disseisee  release  all  actions  to  the  tenant  for  life, 
after  the  death  of  the  tenant  for  life,  he  in  the  remainder  shall 
not  take  benefit  of  this  release,  for  it  extended  only  to  the 
tenant  for  life,  as  it  is  holden  [a]  in  Edivard  Altham's  case.    And  [a]  Lib.  8.  fol. 
in  like  manner,  if  the  disseisor  make  a  lease  for  life,  and  the  dis-  148.  Edw.  Alt. 
seisee  release  all  actions  to  the  lessee,  this  inureth  not  to  him  in  ^^olt  sTo^'iQi  ) 
the  reversion  ;  and  so  our  author  is  to  be  understood  of  a  release 
of  rights,  and  not  of  a  release  of  actions,  to  the  tenant  for  life, 
as  to  or  for  the  benefit  of  him  in  the  remainder  or  reversion. 


Sect.  472. 

ALSO,  if  a  man  be  disseised  by  two,  if  he  release  to  one  of  them  (1), 
hee  shall  hold  his  companion  out  of  the  land,  and  by  such  release  hee 
shall  have  the  sole  j^ossession  and  estate  of  the  land.  But  if  a  disseisor 
infeoffe  two  in  fee,  and  the  disseisee  release  to  one  of  the  feoffees,  this 
shal  inure  to  both  the  feoffees,  and  the  cause  of  the  diversity  between  these 
tivo  cases  is  pregnant  enoiigh.  *  For  that  they  come  in  by  feoffment,  and 
the  others  by  ivrong,  ^-c. 

"  TF  a  man  be  disseised,  &c."    This  is  to  bee  understood  where  21  Uen.  6. 41. 
tenant  in  fee  simple  is  disseised  and  release;  for  if  tenant  (Ant.  194. a.  b.) 

for 

*  The  remainder  of  this  Section  not  in  L.  and  M.  or  Roh. 


(1)  Here  the  release  is  to  the  disseisors  themselves.  They  have  only  a  bare 
possession,  preceded  by  no  previous  couvcyance,  and  founded  on  no  right  or 
title,  and  therefore  the  release  of  the  disseisee  who  has  the  right,  passes  the 
right  to  the  disseisor  to  whom  it  is  made,  and  his  holding  out  his  companion  is 
an  act  of  notoriety  equal  to  that  by  which  the  joint  estate  by  disseisin  was 
originally  acquired.  Thus  the  possession  of  each  of  the  estates  being  founded 
on  an  equal  degree  of  wrongful  title,  the  disseisor  to  whom  the  release  is  made, 
having  the  right,  must  be  preferred  to  him  who  has  none  :  so  that,  in  this  case, 
the  release  is  tantamount  to  an  actual  entry  and  feoffment. — [Note  240.] 


275.b.  276.a.] 


Of  Releases.     L.  3.  C.  8.  Sect.  472. 


[6]  13  E.  4.  tit. 
Discent,  F.  29. 


(Ant.  265.  b. 
Ant.  239.  a.) 


10  H.  6.  22. 
38  H.  6.  28. 
Case  de  occu- 
pant. 
(Ant.  42.  b.) 


for  life  be  disseised  by  two,  and  he  releaseth  to  one  of  them,  this 
shall  inure  to  them  both ;  for  he  to  'svhom  the  release  is  made, 
hath  a  longer  estate  than  hee  that  releaseth,  and  therefore  cannot 
inure  to  him  alone,  to  hold  out  his  companion,  for  then  should 
the  release  inure  by  way  of  entrie  and  grant  of  his  estate  ;  and 
consequently  the  disseisor,  to  whom  the  release  is  made,  should 
become  tenant  for  life,  and  the  reversion  revested  in  the  lessor  [6], 
which  strange  transmutation  and  change  of  estates  in  this  case 
the  law  will  not  suffer.  But  if  lessee  for  yeares  be 
ousted,  and  he  in  the  B@°'  reversion  disseised,  and  the  rQ76. 
lessee  release  to  the  disseisor,  the  disseisee  may  enter,  I_  a. 
for  the  terme  of  yeares  is  distinct  and  determined.  But 
otherwise  it  is  in  case  of  a  lessee  for  life,  for  the  disseisor  hath 
a  freehold,  whereupon  the  release  of  tenant  for  life  may  enure ; 
but  the  disseisor  hath  no  terme  for  yeares,  whereupon  the  release 
of  the  lessee  for  yeares  may  enure. 

And  so  it  is  if  donee  in  taile  be  disseised  by  two,  and  releaseth 
to  one  of  them,  it  shall  enure  to  them  both.  But  if  the  king's 
tenant  for  life  be  disseised  by  two,  and  he  releaseth  to  one  of 
them,  he  shall  hold  out  his  companion,  for  the  disseisor  gained 
but  the  estate  for  life.  So  if  two  joyntenants  make  a  lease  for 
life,  and  after  doe  disseise  the  tenant  for  life,  and  he  release  tc) 
one  of  them,  he  shall  hold  out  his  companion,  for  the  disseisin 
was  but  of  an  estate  for  life. 

If  tenant  for  life  be  disseised  by  two,  and  he  in  the  reversion 
and  tenant  for  life  joyne  in  a  release  to  one  of  the  disseisors, 
he  shall  hold  his  companion  out,  and  yet  it  cannot  enure  by  way 
of  entrie  and  feoffment.  But  if  they  severally  release  their 
severall  rights,  the  severall  releases  shall  enure  to  both  the 
disseisors. 

But  here  in  Littleton'' s  case,  where  tenant  in  fee  simple  is  dis- 
seised by  two,  and  releaseth  to  one  of  them,  this  for  many  pur- 
poses enureth  by  way  of  entrie  and  feoffment,  and  therefore  he 
to  whom  the  release  is  made  shall  hold  out  his  companion,  and 
be  made  sole  tenant  of  the  fee  simple.  And  this  holdeth  not 
only  in  case  of  a  disseisin,  but  also  in  case  of  intrusion  and 
abatement:  but  necessarily  he  to  whom  the  release  is  made 
must  bee  in  by  wrong,  and  not  by  title. 

If  two  men  doe  gaine  an  advowson  by  usurpation,  and  the 
right  patron  releaseth  to  one  of  them,  he  shall  not  hold  out  his 
companion,  but  it  shall  enure  to  them  both ;  for  seeing  their 
clerke  came  in  by  admission  and  institution,  which  are  judicial! 
acts,  they  are  not  merely  in  by  wrong :  for  an  usurpation  shall 
cause  a  remitter,  as  it  appeareth  in  F.  N.  i?.  31.  m 

But  if  a  lease  for  life  be  made,  the  remainder  for  life,  the  re- 
mainder in  fee,  and  he  in  remainder  for  life  disseiseth  the  tenant 
for  life,  and  then  tenant  for  life  dieth,  the  disseisin  is  purged  and 
he  in  the  remainder  for  life  hath  but  an  estate  for  life.  And  so 
note  a  diversitie  where  the  particular  estate  for  life  is  precedent, 
and  when  subsequent. 

Where  our  author  putteth  his  case  of  one  disseised,  put  the 
case  that  two  joyntenants  in  fee  be  disseised  by  two,  and  one  of 
the  disseisees  release  to  one  of  the  disseisors  all  his  right,  he 
shall  not  hold  out  his  companion,  because  the  release  is  but  of 
the  moytie,  without  any  certaintie.  If  a  man  be  disseised  by 
two  women,  and  one  of  them  take  husband,  and  the  disseisee 
release  to  the  husband,  this  shall  enure  to  the  advantage  of  both 

the 


L.  3.  C.  8.  Sect.  473.     Of  Eeleases.  [276.  a.  276.  L 

the  disseisors,  because  the  husband  was  no  wrong  doer,  but  in  a  (Post.  278.  a.) 
manner  in  by  title. 

'^  Hee  shall  have  the  sole  possession  and  estate."  If  two  dis- 
seisors be,  and  they  make  a  lease  for  life,  and  the  disseisee 
release  to  one  of  them,  this  shail  enure  to  them  both,  and  to  the 
benefit  of  the  lessee  for  life  also ;  for  he  cannot  by  the  release 
have  the  sole  possession  and  estate,  for  part  of  the  estate  is  in 
another. 

And  so  it  is  (as  it  seemeth)  if  the  disseisors  make  a  lease  for 
yeares,  and  the  disseisee  release  to  one  of  them,  this  shall  enure 
to  them  both,  for  by  the  release  he  cannot  have  the  sole  pos- 
session :  and  it  appcareth  by  Littleton,  that  he  must  have  the 
sole  possession,  and  hold  his  companion  out.  But  the  morgagee 
upon  condition,  having  broken  the  condition  is  disseised  by  two, 
the  morgagor  having  the  title  of  entrie  for  the  condition  broken, 
release  to  the  one  disseisor,  albeit  they  be  in  by  wrong,  yet  the 
release  shall  enure  to  them  both  for  two  causes  :  first,  for  that 
they  are  not  wrong  doers,  to  the  morgagor,  but  to  the  morgagee ; 
and  by  Littleton's  case  it  appeareth,  that  wrong  is  done  to  him 
that  made  the  release;  secondly,  thathee  that  makes  the  release 
hath  but  a  title  by  force  of  a  condition,  and  Littleton's  case  is  of 
a  right.  Like  law  of  an  entrie  for  mortmaine,  or  a  consent  to 
ravishment,  &c. 

"  But  if  a  disseisor  in/eoffe  two,  &c."  And  the  reason  of  this  21  H.  6.  41. 
diversitie  is,  for  that  the  feoifees  are  in  by  title,  and  are  presumed  (^i^''  ■^^t'x 
to  have  a  warrantie,  which  is  much  favoured  in  law,  and  the 
disseisors  are  meerely  in  by  wrong.     And  the  equitie  of  the  law 
doth  preserve  in  this  case  the  benefit  of  the  estranger  to  the 
release  coming  in  by  one  joynt  title. 

"  Fo7'  that  tJiey  come  in  hy  feoffment,  and  the  other  hy  xcrong." 
This  is  of  a  new  addition,  and  not  in  the  originall,  and  therefore 
I  passe  it  over. 


[^I^-]  m^  Sect.  473. 

A  LSO,  if  I  bee  disseised,  and  my  disseisor  be  disseised,  if  I  release  to 
the  disseisor  of  my  disseisor,  I  shall  not  have  an  assise  nor  enter  upon 
*the  disseisor,  because  his  disseisor  hath  my  right  by  my  release,  ^c.  ^And 
so  it  seemeth  in  this  case,  if  there  be  xx.  disseised  one  after  another,  and 
I  release  to  the  last  disseisor,  "^  this  disseisor  shall  barre  all  the  others  of 
their  actions  and  their  titles.  And  the  cause  is,  §fl8  it  seemeth,  for  that  in 
many  cases,  when  a  man  hath  laivfull  title  of  entrie,  although  he  doth  not 
enter,  he  shall  defeat  all  meane  titles  by  his  release  (quant  un  home  ad 
loyal  title  d'entre,  |1  coment  que  il  n'entra  pas,  il  defeatera  touts  meane 

titles 

*  tlie — his,  in  L.  and  M.  and  Roh.  §  as  it  seemeth,  not  in  L.  and  M. 

f  J.nfZnot  in  L.  and  M.  or  Roh.  or  Roh. 

\  this  disseisor — he,  L.  and  M.  and  ||  coment  que  il  n'entra  pas— at  entre. 

Roll.  L.  and  M.  and  Roh. 


276.  b.  277.  a.]      Of  Keleases.        L.  3.  C.  8.  Sect.  474. 

titles  per  son  release),  ^c.  But  this  holds  not  in  everie  case,  (mes  ceo 
n'est  if  my  en  chescun  case),  as  shall  be  said  hereafter  (1). 

HERE  it  is  to  be  observed,  that  a  release  by  one  whose  entry 
is  lawful!  to  him  that  is  in  by  wrong,  shall  purge  and  take 
away  all  meane  estates  and  titles.     And  where  our  author  first 
putteth  his  case  of  two  estates  by  wrong,  and  after  of  twentie 
disseisins,  all  estate  be  wrong. 
(Post.  277.  b.  If  A.  disseise  B.  who  enfeoffeth  C.  with  warrantie,  who  en- 

II^FT^fi  41  feofiFeth  D.  with  warrantie,  and  E.  disseiseth  D.  to  whom  i?.  the 

11  B..  4!  33!  first  disseisee  relcaseth,  this  doth  defeat  all  the  meane  estates 
9  H.  7.  25.  and  warranties,  because  the  release  of  B.  is  made  to  a  disseisor, 
^,\'^\^t'o  and  his  entrie  is  lawfull. 

21  E.  4.  78. 

12  Ass.  22.  Vid.  3.  H.  6.  38. 


Sect.  474. 

ALSO,  if  my  disseisor  letteth  the  tenements  ivhereof  he  disseised  w.ei. 
to  another  (a  un  *auter  home) /or  terr)ie  of  life,  and  after  the  tenant 
for  terme  of  life  alieneth  in  fee,  and  I  release  to  the  alienee,  ^c.  then  my 
disseisor  cannot  en^er  causa  qua  supra,  albeit  that  at  one  time  the  aliena- 
tion was  to  his  disinheritance,  ^e. 

"  A  LSO,  if  my  disseisor  letteth,  <kc.     If  the  desseisor  make  a 
lease  for  life,  and  the  lessee  maketh  a  feoflFment  in  fee,  and 
the  disseisee  releaseth  to  the  feoifee,  the  disseisor  shall  not  enter 
upon  the  feoflFee;  for  albeit  the  release  to  one  joynt  feoifee  of  a 
disseisor,  as  hath  beene  said,  shall  not  exclude  the  other,  yet  a 
release  to  the  feoffee  of  a  tenant  for  life  in  this  case  shall  take 
away  the  entrie  of  the  disseisor  for  the  alienation  which 
was  made  to  his  JS®""  disinheritance,  hee  having  the   ["277.1 
rs  Eep.  148.        inheritance  by  disseisin,  so  as  he  could  have  no  war-   L     ^-     J 
fi  R '     70  ranty  annexed  to  it,  and  tenant  for  life  hath  forfeited 

Hob.  279.)  liis  estate.     But  if  the  entrie  of  the  disseisee  were  not  lawfull,  it 

is  otherwise.  As  if  a  man  make  a  lease  for  life,  and  the  lessee 
for  life  is  disseised,  and  that  disseisor  is  disseised,  and  in  the 
reversion  releaseth  to  the  second  disseisor,  the  first  disseisor  shall 
enter  upon  the  second  disseisor,  and  his  entry  is  lawfull ;  and  if 
the  lessee  for  life  re-enter,  he  shall  leave  the  reversion  in  the 
first  disseisor ;  and  the  cause  is,  for  that  the  entry  of  the  dis- 
seisor (A)  at  the  time  of  the  release  made  was  not  lawfull.    And 

the 

(A)  disseisor  seems  to  he  here  printed  by  mistake  instead  of  disseisee.  See  3Ir.  Ritso's 
Intr.  p.  119. 

^  my — pas.  L.  and  M.  and  Roh.         *  auter  not  in  L.  and  M.  or  Roh. 


(1)  This  is  upon  the  same  principal,  that,  where  the  title  to  the  possession  is 
equal,  the  party  who  obtains  the  right  shall  be  preferred. — So,  by  the  modern 
law,  where  the  equity  of  the  party  is  equal,  he  who  has  the  law,  is  to  be  pre- 
ferred.—[Note  2-il.] 


L.  3.  C.  8.  Sect.  475.       Of  Releases.  [277.  a. 

the  booke  of  [m]  9  E.  7.  25.  is  to  be  intended  (B)  of  an  estate  [m]  9  H.  7.  25. 
taile  mutatis  mutandis. 

If,  in  the  case  aforesaid,  the  disseisor  make  a  lease  for  life, 
and  the  lessee  infeoffeth  two,  and  the  disseisee  release  to  one  of 
the  feoiFees,  this  shall  barre  the  disseisor,  as  hath  beene  said; 
but  yet  he  shall  not  hold  out  his  companion  for  the  cause  afore- 
said. 


Sect.  475. 


J^LSi 


SO,  if  a  man  he  disseised,  who  hath  a  sonne  within  age  and  dieth, 
and  the  sonne  heiiig  within  age  the  disseisor  dieth  seised,  and  the 
land  descend  to  his  heire  (1),  and  a  stranger  abate,  and  after  the  sonne 
of  the  disseisee,  when  hee  commeth  to  his  full  age,  releaseth  all  his  right 
to  the  abator ;  iti  this  case  the  heire  of  the  disseisor  shall  not  have  an 
assise  of  mor-d'ancester  against  the  abator;  but  shall  be  barred  (encest 
case  I'heire  le  disseisor  n'avera  assise  de  mor-d'ancester  envers  I'abator, 
mes  serra  bar,*)  because  the  abator  hath  the  right  of  the  sonne  of  the 
disseisee  by  his  release,  and  the  entry  of  the  sonne  was  congcable,  '\for 
that,  hee  was  within  age  at  the  time  of  the  discent,  ^^c. 

''I 'HE  reason  of  this  case  is,  for  that  the  entry  of  the  heire  is 
J-     congeable,  and  the  abator  is  in  the  land  by  wrong. 

'•^  Abate,"  is  both  an  English  and  French  word,  and  signifieth  Vet.  N.  B.  115. 
in  his  proper  sense  to  diminish   or   take  away,  as  here  by  his  Britton,  cap.  51. 
entrie  he  diminisheth  and  takcth  away,  the  freehold  in  law  de-  ^l^^^2^' 
scended  to  the  heire:   and   so  it  is   said  to  abate  an  account,  f.  N.  B.  203.  F. 
signifying  subtraction  or  withdrawing,  &;c.   and   to  abate   the  W.  1.  ca.  17. 
courage  of  a  man.     In  another  sense  it  signifyeth  to  prostrate, 
beat  downe,  or  overthrow,  as   to   abate  castles,  houses,  and  the 
like,  and  to  abate  a  writ;   and  hereof  commeth  a  word  of  art, 
ahatamentum,  which  is  an  entrie  by  interposition.     Now  the 

difference 

(B)  For  It  is  not  so  expressed  in  any  part  of  page  25  of  the  year  book  re/erred  to ; 
and  in  another  place  lord  Coke,  after  observing  that  the  case  in  9  H.  7.  25.  a.  is  mis- 
printed, mentions  what  the  reading  should  be  according  to  the  manuscript,  which  he  had 
seen.     See  6  Hep.  70. 

*  d'assise  added  in  L.  and  M.  and  Roll.     ■\  &c.  added  in  L.  and  M.  and  Roh. 


(1)  Littleton  having  treated  of  releases  j)cr  mitter  le  droit,  when  made  to 
the  disseisors  themselves  and  their  feoffees,  now  treats  of  their  operation  when 
made  to  the  heir  of  the  disseisor.  In  note  1.  to  page  280,  it  was  observed, 
that  a  disseisor  has  a  mere  naked  possession,  unsupported  by  any  right,  and 
that  the  disseisee  may  restore  his  possession,  and  put  a  total  end  to  the  posses- 
sion of  the  disseisor,  by  entry.  But,  though  the  feoffee  of  the  disseisor  comes 
in  by  title,  still  the  right  of  possession  remains  in  the  disseisee,  and  he  may 
equally  enter  on  the  feoffee  as  on  the  disseisor;  so  that  a  release  j^er  mitter  le 
droit  gives  both  to  the  disseisor  and  his  feoffee  the  right  of  possession  and  the 
right  of  property :  but  if  the  disseisor  dies,  the  entry  of  the  disseisee  is  taken 
away,  and  a  presumptive  right  of  possession  is  in  the  heir;  so  that  the  release 
of  the  disseisee  only  passes  the  right  of  property. — [Note  2-12.] 

Vol.  II.— 26 


277.  a.  277.  b.] 


Of  Eeleases.     L.  3.  C.  8.  Sect.  476. 


[h]  F.  N.  B.  203. 
Flota,  li.  4. 
cap.  30. 


[o]  PI.  Com. 
case  de  mynes. 

[p]  F.  N.  B.  141. 
F.  Q.  H. 


[q]  Glanvil. 

lib.  9.  cap.  11. 

Britton,  fol.  2S, 

29. 

(Cro.  Car.  17. 

2  Inst.  278.) 


difference  inter  disseisinam,  abatamentum,  intrimonem,  de/orcia- 
meniiim,  et  usurpationem,  ct pnrpresturam ,  is  this: 

A  disseisin  is  a  wrongfull  putting  out  of  him  that  is  actually 
seised  of  a  freehold.  And  abatement  is  when  a  man  died  seised 
of  an  estate  of  an  inheritance,  and  betweene  the  death  and  the 
entry  of  the  heire,  an  estranger  doth  interpose  himselfe,  and  abate. 

Intrusion  first  properly  [?i]is,  when  the  ancestor  died  seised  of 
any  estate  of  inheritance  expectant  upon  an  estate  for  life,  and 
then  tenant  for  life  dieth,  and  between  the  death  and  the  entry 
of  the  heire  an  estranger  doth  interpose  himselfe  and  intrude. 

Secondly,  [o]  he  that  entreth  upon  any  of  the  king's  demesnes, 
and  takcth  the  profits,  is  said  to  intrude  upon  the  king's  possession. 

0::v" Thirdly,  [p]  when  the  heire  in  ward  entreth  at  pQ-,)y  -, 
his  full  age  without  satisfaction  for  his  mariage,  the  v^  I 
writ  saith,  qudd  intrusit.  *-       '     -^ 

Deforciamcntum  comprehendeth  not  only  these  aforenamed, 
but  any  man  that  holdeth  land  whereunto  another  man  hath 
right,  be  it  by  discent  or  purchase,  is  said  to  be  a  deforceor. 

Usurpation  hath  two  significations  in  the  common  law :  one, 
when  an  estranger  that  no  right  hath  presentcth  to  a  church, 
and  his  clerke  is  admitted  and  instituted,  hee  is  said  to  bee  an 
usurper,  and  the  wrongfull  act  that  he  hath  done  is  called  an 
usurpation. 

Secondly,  when  any  subject  doth  use,  without  lawfull  war- 
rant, royal  franchises,  he  is  said  to  usurpe  upon  the  king  those 
franchises. 

Parprestura,  or  pourprestura,  a  purpresture.  \c[\  Purpres- 
tura  est,  &c.  generaliter  quoties  aliquid  Jit  ad  nocumentum  regit 
tenementij  vel  rcgise  vise  (vel  aliquarum  publicarum)  vel  civi- 
taiis,  &c.  And  because  it  is  properly  when  there  is  a  house 
builded,  or  an  enclosure  made  of  any  part  of  the  king's  demesnes, 
or  of  an  highway,  or  a  common  street  or  publike  water,  or  such 
like  publiko  things,  it  is  derived  of  the  French  word  pourpris, 
which  signifieth  an  inclosurc,  but  specially  applied,  as  is  afore- 
said, by  the  common  law. 


Sect.  476. 

D  UT  if  a  man  be  disseised  (Mes  si  *  home  soit  disseisee),  and  the  dis- 
seisor maJceth  a  feoffement  upon  condition^  viz.  to  render  to  him  a 
certaine  rent,  and  for  default  of  payment  a  re-entry,  S^c.  if  the  disseisee 
release  to  the  feoffee  upon  condition,  yet  this  shall  not  amend  the  estate 
of  the  feoff ee  upon  condition  (uncore  ceo  f  n'amendra  Testate  le  feoffee 
sur  condition) ;  for  notwithstanding  such  release,  yet  his  estate  is  upon 
condition,  as  it  was  before  (1). 

X  And  with  this  agreeth  the  opinion  of  all  the  justices,  Pasch.  9  H.  7. 

HERE 


*  ascun  added  in  L.  and  M.  and Roh. 

f  n'amendra  —  ne  abatera,   L.  and 

M.  and  Roh.  ne  alterast,  Pap.  AIS. 


n'avoidera.   Veil.  MS. 

I  This  paragraph  not  in  L.  and  M. 
or  Roh. 


(1)  The  observations  made  on  note  1.  to  page  275.  a.  note  1.  to  page  276.  b. 
and  the  note  to  the  preceding  page,  apply  to  the  cases  put  by  Littleton  in  this 

and 


L.  3.  C.  8.  Sect.  477.        Of  Releases.  [277.  b. 

HERE  the  entry  of  the  disseisee  is  congeable,  and  yet  the  9  H.  7.  25. 
release  doth  not  avoid  the  condition,  because  the  feoffee  is 
in  by  title,  as  hath  beene  said,  and  may  have  a  warranty  (2).  And 
herein  our  author  expresseth  a  divcrsitie  betweene  a  condition 
in  law,  and  a  condition  in  deed  •  for  in  the  case  before  when  the 
disseisee  releaseth  to  the  feoffee  of  the  tenant  for  life,  the  con- 
dition in  law  is  taken  away,  but  otherwise  it  is  in  this  case  of  a 
condition  in  deed. 

But  if  the  feoffee  upon  condition  make  a  feoffment  in  fee  over  (Sect.  415.J 
without  any  condition,  and  the  disseisee  release  to   the  second  Vi^-  ■^•/;  l^*"- 
feoffee,  the  condition  is  destroyed  by  the  release  before  the  con-  ^'"^^  ^^^^' 

dition  broken  or  after.  For  the  state  of  the  second  feoffee  was 
not  upon  any  expresse  condition,  as  Littleton  here  putteth  his 
case,  and  he  may  have  advantage  of  the  release,  because  it  is  not 
against  his  owne  proper  acceptance,  as  Lltthton  speaketh  in  the 
next  Section. 

But  if  it  be  a  wrongfull  title,  such  a  title  is  taken  away  by  a 
release;  as  if  ^.  disseised  B.  to  the  use  of  6'.,  B.  release  to  A. 
this  shall  take  away  the  agreement  of  C.  to  the  disseisin,  because 
it  should  make  him  a  wrong  doer  :  as  if  the  disseisor  be  disseised, 
the  disseisee  releaseth  to  the  second  disseisee  (C),  this  taketh 
away  the  right  the  first  disseisor  had  against  the  second,  and  a  14  H.  8.  IS. 
relation  of  an  estate  gained  by  wrong  shall  never  defeat  an  estate  P^r  Port. 

•  •  •  ^Ant    271     fl 

subsequent  gained  by  right,  against  a  single  opinion,  not  affirmed  \^^  b  )   *    ' 
by  any  other  in  one  of  our  bookes. 


Sect.  477. 

TN  the  same  manner  it  is  where  a  man  is  disseised  of  certaine  lands, 
and  the  disseisor  grant  a  rent-charge  out  of  the  same  land,  ^c.  albeit 
the  disseisee  doth  afterwards  release  to  the  disseisor,  ^c.  yet  the  rent- 
charge  remaynes  in  force.  And  the  reason  in  these  two  cases  is  this, 
that  a  man  shall  not  have  advantage  by  such  release  which  shall  bee 
against  his  proper  acceptance,  and  against  his  oivn  grant.  And  albeit 
some  have  said,  that  ivhere  the  entry  of  a  man  is  congeable  upon  a  ten- 
ant, if  hee  releases  to  the  same  tenant,  that  this  shall  availe  the  tenant,  as 
if  he  had  entered  upon  the  tenant,  and  after  enfeoffed  him,  ^c.  this  is 
not  true  in  every  case.  For  in  the  first  case  of  these  two  cases  aforesaid,  if 
the  disseisee  had  entered  upon  the  feoffee  upon  condition,  and  after  en- 
feoffed him,  then  is  the  condition  wholly  defeated  and  avoided.  And  so 
in  the  second  case,  if  the  disseisee  entereth  and  enfeoffeth  him  who  grant- 
ed the  rent-charge,  then  is  the  rent-charge  taken  away  and  avoided,  but 
it  is  not  void  by  any  such  release  without  entitle  made,  ^c. 

''AND 

(C)  disseisee  seems  to  be  here  printed  by  m istake  instead  of  disseisor.  See  Mr.  Ritso's  Intr.p.  119. 

and  the  following  Section,  and  by  sir  Edward  Coke  in  his  commentary.  The 
whole  of  the  doctrine  contained  in  this  chapter  is  particularly  well  explained 
by  lord  chief  baron  Gilbert  in  his  treatise  on  tenures. — [Note  243.] 

(2)  Therrasoii  of  this  case  in  the  hook  here  cited  is,  that  the  condition  is  like 
a  covenant  hctu-ncn  llicm ;  and  he  is  estopped  from  claiming  it  otlierioise  :  and 
tilt  dioersity  following  seems  to  warrant  this.  Post.  278.  b. — Lord  Nott.  MSS. 
—[Note  214.] 


278.  a.  278.  b.       Of  Keleases.       L.  3.  C.  8.  Sect.  477. 


''   A  ND  the  disseisor  grant  a  rent  charf/e,  tfr."   Here 

-^  is  implyed  commons  or  any  other  OO"  profit  out  fSV^ 
of  the  lands.     And  the  reason  is,  because  he  shall  not  [_     ^• 


avoid  his  owne  grant  by  a  release  bee  himselfe  hath 
acquired  since  the  grant  :  but  if  the  disseisor  in  that  case  be  dis- 
seised, and  the  disseisee  release  to  the  second  disseisor,  he  shall 

r7Rep  38  )  avoid  it,  as  by  that  which  hath  beene  said,  Sect.  473,  appeareth. 

(Post.  349.  a.)      So  likewise  if  A.  and  B.  bee  joynt  disseisors,  and  B.  grant  a  rent- 

(Mo.  95.)  charge,  and  the  disseisee  release  to  A.  all  his  right,  A.  shall  avoid 

the  rent-charge,  because  it  was  not  granted  by  him,  and  so  not 
within  the  reason  of  our  author. 

If  there  bee  two  femes  joint  disseisors,  and  the  one  taketh 

(Ant.  276.  a.)       jiusband,  and  the   disseisee  release   to   the   other,  she   is   sole 
seised,  and  shal  hold  out  the  husband  and  wife. 

If  two  disseisors  bee,  and  they  infeolFe  another,  and  take  backc 
an  estate  for  life  or  in  fee,  albeit  they  remain  disseisors  to  the 
disseisee  as  to  have  an  assise  against  them,  yet  if  he  release  to 
one  of  them,  he  shall  not  hold  out  his  companion,  because  their 
state  in  the  land  is  by  feoffment. 

If  there  be  two  disseisors,  and  they  be  disseised,  and  they 
release  to  their  disseisor,  and  after  disseise  him,  and  then  the  dis- 
seisee release  to  one  or  both  of  them,  yet  the  second  disseisor 
shall  re-enter,  for  they  shall  not  hold  the  land  against  their  owne 
release ;  for  Littleton,  here  saith,  that  they  shall  not  avoid  their 
owne  grant,  and  by  like  reason  they  shall  not  avoid  their  owne 
release,  et  sic  de  siniilibus. 

'<J.s  if  lie  had  entered  upo7i  the  tenant,  and  after  enfeoffedhim, 
^  "°  *       ''  &c."     ilere  is  another  kinde   of  release,  viz.  a  release  which 

enureth  by  way  of  entry  and  feoffment ;  for  if  a  disseisee  release 
to  one  of  the  disseisors  to  some  purpose,  this  shall  enure  by  way  of 
entry  and  feoffment,  viz.  as  to  hold  out  his  companion. 
But  as  to  a  rent-charge  JS®"  granted  by  him,  it  shall    r378.'l 
not  enure  by  way  of  entrie  and  feoffment;  for  if  the    L     ^'     J 
disseisee  had  entred  and  enfeoffed  him,  the  rent-charge 
had  beene  avoided.  But  it  is  a  certaine  rule,  that  when  the  entry 
of  a  man  is  congeable,  and  he  releaseth  to  one  that  is  in  by  tith', 
(as  here  to  the  feoffee  upon  condition  is)  it  shall  never  enure  by 
way  of  entry  and  feoffment,  either  to  avoid  a  condition  with 
which  he  accepted  the  land  charged,  or   his  owne  grant,  or  to 
hold  out  his  companion. 
(Dr  and  Stud         ^^^  where  it  appeareth  by  our  author,  that  acts  done  by  the 
60.  a.)  '    disseisor  shall  not  be  avoided  by  the  release  of  the  disseisee,  it  is 

to  be  noted,  that  acts  made  to  the  disseisor  himselfe  shall  not  be 
avoyded  by  the  alteration  of  his  estate  by  the  release  of  the  dis- 
seisee; as  if  the  lord  before  the  release  had  confirmed  the  estate 
of  the  disseisor  to  hold  by  lesser  services,  the  disseisor  shall  take 
advantage  of  it,  and  so  of  estovers  to  be  burnt  in  the  house,  and 
the  like  law  of  a  warrantie  made  unto  him. 

If  the  heire  of  the  disseisor  indow  his  wife  ex  asscnsu  patris, 
and  the  disseisee  release  to  the  disseisor,  he  shall  not  avoide  the 
indowment,  for  that  is  like  the  case  put  by  Littleton  of  the  rent- 
charge. 

If  an  alien  be  a  disseisor,  and  obtaine  letters  of  denization, 
and  then  the  disseisee  release  unto  him,  the  king  shall  not  have 
the  land,  for  the  release  hath  altered  the  estate,  and  it  is  as  it 
were  a  new  purchase ;  otherwise  it  is  as  if  the  alien  had  beene 
the  feoffee  of  a  disseisor.  If 


L.  3.  C.  8.  Sect.  478.     Of  Keleases.  [278.  b. 

If  the  lord  disseise  the  tenant,  and  is  disseised,  the  disseisee 
release  to  the  second  disseisor,  yet  the  seigniore  is  not  revived, 
for  betweeno  the  parties  the  release  enures  by  way  of  entrie  and 
feoffment  as  to  the  land  ;  but  not  having  regard  to  the  seigniore, 
and  for  that  the  possession  M'as  never  actually  removed  or  re- 
vested from  the  disseisor,  who  claimeth  under  the  lord,  the  seig- 
niorie  is  not  revived.  But  if  the  lord  and  a  stranger  disseise  the 
tenant,  and  the  disseisee  release  to  the  stranger,  there  the  seig- 
niorie  by  operation  of  law  is  revived,  for  the  whole  is  vested  in 
the  stranger  which  never  claimed  under  the  lord :  and  in  that 
case,  if  the  lord  had  died,  and  the  land  had  survived,  the  seig- 
niorie  had  been  revived.  But  if  the  lord  had  disseised  the 
tenant,  and  beene  disseised  by  two,  and  the  disseisee  released 
to  one  of  them,  the  scigniorie  is  not  revived,  because  he  claimed 
(as  hath  beene  said)  under  the  lord. 


Sect.  478. 


ALSO,  if  a  man  be  disseised  hy  an  infant  *,  who  alien  in  fee,  and  the 
alienee  dieth  seised,  and  his  heire  entreth,  f  the  disseisor  being  ivithin 
age,  now  is  it  in  the  election  of  the  disseisor  (ore  est  en  election  J  le  dis- 
seisour)  to  have  a  writ  ||  of  dum  fuit  infra  setatem,  or  a  writ  of  right 
against  the  heire  of  the  alienee,  and  which  writ  of  them  he  shall  chaise, 
hee  ought  to  recover  by  the  laiv,  §  ^c.  And  also  he  may  enter  into  the 
land  ivithout  any  recovery,  and  in  this  case  the  entrie  of  the  disseisee  is 
taken  away,  <f  c.  But  in  this  case  if  the  disseisee  release  his  right  to  the 
heire  of  the  alienee,  and  after  the  disseisor  bring  eth  a  writ  of  right  against 
the  heire  of  the  alienee,  and  hee  joyne  the  mise  upon  the  meere  right,  ^c. 
the  great  assise  ought  to  finde  by  the  law,  that  the  tenant  hath  more  meere 
right  \.  than  the  disseisor,  ^  ^c.for  that  the  tenant  hath  the  right  of  the 
disseisee  by  his  release,  the  which  is  the  most  ancient  and  most  meere  right : 
for  by  such  release  all  the  right  of  the  disseisee  passeth  to  the  tenant,  and 
is  in  the  tcjiant.  And  to  this  some  have  said,  that  in  this  case  where  a  man 
which  hath  right  to  lands  or  tenements  [but  his  entrie  is  not  congeable)  if 
he  release  to  the  tenant  **  all  his  right,  cfe.  that  such  release  shall  enure 
by  way  of  extinguishment.  As  to  this  it  may  bee  said,  that  this  is  true 
(que  ceo  est  f  f  voyer)  as  to  him  which  relcaseth  ;  for  by  his  release  he 
hath  dismissed  himself  quite  [W  quietment)  of  \.\.  his  right  as  to  his 
person,  but  yet  ||{{  the  right  which  he  hath  may  well  pass  to  the  tenant  by 


*   within  age  added  in  L.  and  ]M.  **  &c.  added  L.  and  M.  and  Roh. 

and  Roh.  ff  voyer — verite,  L.  and  M.  and 

"j"  the  disseisor — the  alienor  in  L.  and  J^oh. 

M.  and  Roh.  ||  quietment  not  in  L.  and  M.  or 

I  le  disseisour — d'alienour,  L.  and  Roh. — nettcraent,  MSS. 

M.  and  Roh.  41  all  added  L.  and  M.  and  Roh. 

II  of  not  in  L.  and  M.  or  Roh.  ||||  the  rlijht  which  he  hath  may  xceJl 
§  &e.  not  in  L.  and  M.  or  Roh.  jyass  to  the  tenant  hy  his  release,  not  in 
4  &c,  added  L.  and  M.  and  Roh.  the  Veil.  M8.  but  omitted  most  pro- 
^  dx.  not  in  L.  and  M.  or  Roh.  bably  through  mistake. 


278.  b.]  Of  Eeleases.        L.  3.  C.  8.  Sect.  478. 

Ms  release.  For  it  should  bee  inconvenient  that  such  an  ancient  right 
should  bee  extinct  altogether,  S^c.  for  it  is  commonly  said,  that  a  right 
cannot  die  (1). 

"  WHICH 

(1)  Few  parts  of  Littleton's  tenures  require  more  attention  than  the  present 
Section,  and  the  Five  Sections  by  which  it  is  immediately  followed. 

The  case,  propounded  by  Littleton,  is,  that  A.  is  disseised  by  B.  an  infant ; 
— that  B.  during  his  infancy,  executes  a  feoffment,  with  livery  of  seisin,  to  C. 
and  his  heirs  ; — that,  while  B.  continues  an  infant,  C.  dies,  and  the  land 
descends  to  D.  and  his  heirs; — that,  after  this  descent,  B.  attains  21; — that 
A.  then  releases  to  D.  and  his  heirs; — and  that  B.  then  brings  a  writ  of  right 
against  D.  to  recover  the  land. 

The  feoffment  of  B.  being  executed  by  him  during  his  minority,  was  origi- 
nally voidable  by  him ;  yet,  being  only  voidable  and  not  void,  it  conferred  on 
C.  an  actual  estate  in  fee  simple ;  and  this  estate  would  remain  in  6'.  till  it 
should  be  recovered  from  him  by  B.  or  his  heirs.  Thus  the  rights  of  the 
parties  stood  immediately  upon  the  execution  of  the  feoffment;  and  both  ^1. 
and  B.  might  recover  against  C.  by  entry,  or  by  a  possessory  action,  or  by  a 
writ  of  right ; — and  in  addition  to  these  remedies,  B.  might  recover  against 

C.  by  the  writ  dnm  fuit  infra  (vtatem. 

The  death  of  C.  during  the  minority  of  B.  produced  a  considerable  altera- 
tion in  the  right  of  A.  In  the  chapter  on  Descents  which  take  away  Entries, 
it  has  been  shown  (c.  6.  §  385),  that,  if  a  disseisor  hath  issue,  and  dies  seised 
of  the  land  acquired  by  the  disseisin,  the  law  casts  the  land  on  the  issue ;  and 
the  disseisee  thereby  loses  his  right  to  recover  the  land  by  entry,  and  can  only 
recover  it  by  action.  The  law  is  the  same,  when  the  disseisor  aliens ;  and  the 
alienee  dies  seised  and  the  laud  descends  to  his  issue.  But,  in  Section  402,  it 
is  observed,  that  this  eff'ect  of  a  disseisin  does  not  hold  in  cases  where  both  the 
disseisin  and  the  descent  take  place  during  the  minority  of  the  disseisee.  In 
respect  therefore  to  A.  the  death  of  C.  during  the  minority  of  B.  was  attended 
with  this  important  consequence,  that  it  deprived  A.  of  his  right  to  restore  his 
possession  by  entry,  and  reduced  him,  if  he  sought  to  restore  it,  to  the  neces- 
sity of  doing  it  by  action.  In  respect  to  B.  the  descent  of  the  land,  on  C'.'s 
decease,  to  D.  was  altogether  inoperative :  so  that,  in  this  stage  of  the  title, 
A.  was  equally,  in  respect  to  B.  and  D.  the  rightful  owner  of  the  fee ;  B.  in 
respect  to  A.  was  the  tortious  possessor,  and  in  respect  to  D.  was  the  rightful 
owner  of  it;  and  A.  by  action,  and  B.  both  by  entry  and  action,  might  reco- 
ver the  land  from  D.  The  actions  by  which  A.  and  B.  might  recover  were 
either  possessory,  as  a  writ  of  disseisin  or  assize,  or  droitural,  as  a  writ  of 
right ; — in  addition  to  the  writs  which  have  been  mentioned,  B.  had  the  writ 
dum  fuit  infra  cetatem. 

Uiider  these  circumstances  A.  released  to  D. — Now,  if  B.  had  either  entered 
on  the  land,  or  brought  his  possessory  action  against  D.,  B.  would  have  reco- 
vered.    For,  in  a  suit  upon  either,  the  gist  would  have  been,  whether  B.  or 

D.  had  the  better  right  to  the  possession.  Now,  B.  would  prove  his  actual 
seisin ;  D.  could  only  produce  the  feoffment  from  B.  to  C.  and  prove  his  heir- 
ship to  C.  Against  these,  B.  would  plead  his  non-age ;  and  by  proving  it, 
would  avoid  the  feoff"ment,  and  consequently  obtain  judgment.  But,  instead 
of  entering  on  the  land,  or  bringing  his  possessory  action,  B.  unadvisedly 
proceeds  by  writ  of  right.  In  such  an  action,  the  gist  is,  which  has  the  most 
mere  right,  the  demandant  or  tenant.  If  A.  had  not  executed  the  release  to 
D.,  B.  must  have  recovered ;  for  possession,  standing  singly,  carries  with  it, 
as  well  in  a  writ  of  right,  as  in  a  possessory  action,  a  good  title,  till  a  better  is 
shown.  Now,  B.  was  evidently  in  possession  when  he  executed  the  feoff"- 
ment;  but  that  feoff'mcnt  was  voidable  on  account  of  the  non-age,  and  was 

avoided 


L.  3.  C.  8.  Sect  478.        Of  Releases.  [278.  b. 

"  TU'RICII  n-rit  of  them  lice  shall  cJmse,  dr."     Note,  many  (Ant.  45.  a.) 

times  in  one  case  the  law  doth  give  a  man  severall  reme-  "^'i^e  Sect.  514. 

,  _     _  90   "p     o     no 

dies,  and  of  severall  kindes,  as  in  this  case  by  action  and  by  '^  ^  '^  '^q  ' 
entry;  by  action,  either  a  writ  of  right,  or  duin  fait  infra  ata-  21  E.  4.  55. 
tern.  4t  E.  3.  10. 

.     2  H.  4.  12. 
^^  And  after  the  disseisor  hringcth  a  writ  of  rights  &c."   Here  it 
appeareth  that  there  is  a  great  art  and  knowledge  for  a  man  that 
hath  divers  remedies  to  chuse  his  aptest  remedie;  as  in  this  case, 

if 

avoided  by  the  action.     Thus,  the  feoifment,  standing  singly,  was  no  defence 
against  JB. 

But  the  release  altered  the  case ;  it  conferred  the  right  on  D. :  and  conse- 
quently in  a  droitural  action,  where  the  question  to  be  tried  is,  which  of  the 
parties  has  the  most  mere  right,  it  gave  D.  a  better  title  than  B. 

This,  however,  was  open  to  the  objection  noticed  by  Littleton ; — that  D. 
having  the  actual  estate  of  freehold,  A.'s  right  was  merged  in  it  by  the  release ; 
and  as,  on  this  supposition,  it  ceased  to  exist,  D.  could  not  avail  himself  of  it, 
as  a  defence  against  B. — Something  of  this  nature  occurs  in  modern  law.  If 
a  person  purchase  an  estate,  which  is  subject  to  a  judgment,  of  which,  at  the 
time  of  the  purchase,  he  has  not  notice,  and  procures  a  term  of  years,  prior  in 
its  creation  to  that  judgment,  to  be  assigned  to  a  trustee  for  him,  the  term 
will  protect  him  against  the  judgment.  But  if,  instead  of  having  the  term 
assigned  to  a  trustee,  he  takes  an  assignment  of  it  to  himself,  it  merges  in 
the  freehold,  and  cannot  afterwards  be  set  up  as  a  protection  against  the  judg- 
ment. 

Such  is  the  nature  of  the  objection  noticed  by  Littleton.  He  answers  it  by 
observing,  that,  in  these  cases,  the  effect  of  the  release  is  different,  in  respect 
to  the  releasor,  from  what  it  is  in  respect  to  strangers ;  for  that,  in  respect  to 
the  releasor,  it  ceases  to  exist,  as  by  his  release  the  releasor  hath  dismissed 
himself  quite  of  his  right  j  but  that,  in  respect  to  strangers,  the  right,  which 
the  releasor  had,  passes  by  his  release  to  the  releasee,  and  subsists  in  him  for 
all  beneficial  purposes. 

He  proves  his  position, — 1st,  by  producing  the  maxim  of  the  common  law, 
that  a  right  cannot  die; — -dly,  from  the  general  rule,  that  a  release  can  never 
operate  by  way  of  extinguishment,  if  the  releasee  can  have  that  which  is  re- 
leased to  him.  This  he  shows,  by  the  nature  of  the  cases  to  which  only  such 
releases  apply;  as,  when  a  lord  releases  service  to  a  tenant  (Sect.  479),  or 
where  the  owner  of  a  rent-charge  or  common,  releases  it  to  the  owner  of  the 
land,  which  is  subject  to  it.  Li  the  first  of  these  cases,  the  tenant  could  not 
do  the  service  to  himself;  and  in  the  second,  he  could  not  hold,  distinct  from 
his  land,  the  servitude  with  which  it  was  charged : — in  each  case,  therefore, 
the  release  necessarily  operates  by  way  of  extinguishment.  Hence  Littleton 
infers,  that,  as  releases  can  only  operate  by  way  of  extinguishment,  when  the 
releasee  cannot  have  the  subject  which  is  released,  and  in  the  case  proposed,  the 
releasor  could  take  and  hold  the  right,  the  release  could  not  operate  to  extin- 
guish it. 

In  support  of  this  conclusion,  he  states,  (Sect.  481),  that,  as  the  law  stood 
before  the  statute  of  Westm.  2,  if  a  lease  were  made  to  a  man  for  the  term  of 
his  life,  with  the  remainder  over  in  fee,  and  a  stranger,  by  a  feigned  action, 
recovered  the  land  against  the  tenant  for  life,  by  default,  and  after  the  tenant 
died,  the  person  in  remainder  had  no  remedy.  On  this  doctrine  of  the 
common  law,  Littleton  (Sect.  48-2)  proposes  the  following  case :  A.  is  tenant 
for  life,  with  the  immediate  remainder  to  /  .S'.  in  fee.  1.  aS'.  disseises  ^.,and 
4.  being  thus  disseised,  enters  on  /.  S.,  and  C.  then  brings  a  feigned  action 
against  A.  and  recovers,  by  default.  A.  then  dies,  and  /.  S.  brings  a  writ  of 
right  against  C.     Now  .4.  by  his  entry,  defeated  the  fee,  which  /.  S.  acquired 

by 


278.  b.]  Of  Eeleases,       L.  3.  C.  8.  Sect.  478. 

if  he  bring  his  writ  of  right,  the  disseisor  shall  be  barred,  but 
if  he  had  entred  upon  the  heire  of  the  alienee,  he  should  have 
enjoyed  the  land  for  ever.  For  in  that  case  the  heire  of  the 
alienee  after  such  an  entrie  shall  never  have  a  v^rit  of  right,  no 
more  than  if  the  disseisee  entreth  upon  the  heire  of  the  disseisor, 

and 

by  the  disseisin,  but  restored  his  own  life  estate,  and  the  remainder  in  fee  0^ 
1.  S.  expectant  on  it;  and  then  in  consequence  of  tI.'s  default,  1.  S.  according 
to  the  doctrine  of  the  common  law,  would,  on  ^.'s  decease,  if  the  previous 
disseisin  had  not  taken  place,  have  been  wholly  without  remedy.  Yet,  says 
Littleton,  /.  S.  shall  recover  in  a  writ  of  right — The  reason  is  given  by  lord 
Coke,  in  his  commentary  on  Section  482.  "This  seisin,"  says  his  lordship,  is 
''defeated,  heticefn  the  tenant  for  life,  and  him  in  remainder,  yet,  having  re- 
"  gard  to  the  recoveror,  who  is  a  mere  stranger,  and  hath  no  title,  it  is  suffi- 
''  cient  against  him.  But  otherwise  it  is  against  the  party  who  defeated  the 
''seisin,  the  law  being  prepense  to  give  remedy  to  him  that  right  hath."  This 
case  and  lord  Coke's  explanation  of  it,  exemplify,  and,  to  a  certain  extent, 
establish  Littleton's  position.  The  analogy  between  the  case  propounded  by 
Littleton,  and  the  case  which  he  cites  in  support  of  his  conclusion  on  that  case, 
seems  to  be,  that,  in  each  case,  the  possession  of  the  parties  in  contest  was 
equally  tortious  :  and  the  law,  therefore,  preferred  the  litle  of  him  who  had  the 
most  mere  right.  For,  in  the  first  case,  B.  the  infant  acquired  the  possession 
by  disseisin  :  D.  acquired  it  by  descent  from  C  who  claimed  under  the  voidable 
feoffment  of  B.  But,  as  the  release  of  A.  conferred  AJs  right  to  the  land  on 
D.  the  law  preferred  his  title  to  that  of  B.  as  D.  by  the  acquisition  of  the 
right  of  ^4.  had  most  mere  right. — In  the  other  case,  I.  S.  acquired  the  pos- 
session by  disseisin,  and  C.  acquired  it  under  a  covinous  default.  But  though 
/.  *S^.  by  his  tortious  entry,  accelerated  his  possession  of  the  estate,  yet,  under 
the  original  settlement  of  the  land,  he  became,  on  ^.'s  decease,  the  rightful 
owner  of  it.  The  law  therefore  considered,  that  the  title  of  /.  ^S*.  which  was 
originally  a  rightful  estate,  should  be  preferred  to  the  title  of  O.  which  was 
originally  founded  in  collusion  between  him  and  A.;  and  therefore  adjudged  it 
to  /.  S.  as  having  the  most  mere  right. — These  observations  seem  to  explain 
the  sections  to  which  they  are  applied ;  and  the  nature  of  the  argument,  sug- 
gested by  Littleton  in  support  of  his  opinion,  and  the  case,  by  which  he  illus- 
trates it. 

With  respect  to  the  statute  of  Westminster  2,  mentioned  by  Littleton — it  has 
been  stated,  that,  at  common  law,  if  a  man  were  tenant  for  life,  with  remainders 
over,  and  a  stranger,  by  a  feigned  action,  recovered  against  the  tenant  for  life, 
the  remainder-man  had  no  remedy,  till  it  was  supplied  by  this  statute. 

Further  remedy  was  provided  for  them,  by  the  statute  32  Hen.  8.  c.  31. 
which  enacted,  that  all  common  recoveries  suffered  by  tenant  for  life,  without 
the  consent  of  the  persons  in  remainder  or  reversion,  should  be  totally  void. 

To  avoid  the  effect  of  this  statute,  the  tenant  for  life  sometimes  made  a 
lease  for  years ;  the  lessee  then  made  a  feoft'tnent,  and  a  praecipe  was  brought 
against  the  feoffee,  and  he  vouched  the  tenant  for  life.  It  was  held  that,  as 
the  tenant  for  life  was  disseised  by  the  feoffment  of  his  lessee  for  years,  he  was 
not  the  actual  tenant  for  life,  or  seised  of  the  actual  freehold,  when  the  reco- 
very was  suffered;  and  did  not,  therefore,  fall  within  the  terms  of  the  statute  of 
Hen.  8.  To  bring  such  cases  within  the  intended  remedy  the  statute  of  14  Eliz. 
c.  8.  was  passed;  which  enacted  that  recoveries,  prosecuted  against  tenants  for 
life,  or  in  tail  after  possibility  of  issue  extinct,  or  against  any  other  with  the 
voucher  of  the  particular  tenant,  should  be  void  against  all  persons  in  remainder 
or  reversion;  with  a  proviso,  that  nothing  in  the  act  should  extend  to  recoveries 
by  good  title,  or  to  recoveries  by  assent  and  agreement  of  the  persons  in 
ramainder  or  reversion,  so  that  such  assent  and  agreement  appeared  of  record 

in 


L.  3.  C.  8.  Sect.  478.    Of  Eeleases.  [279.  a.  279.  b, 

and  make  a  feoffment  in  fee,  if  the  heire  of  the  dis- 
["979.1   seisor  J3@°"re-enter  he  shall  detaine  the  land  for  ever,  (Ant.  200.  a.) 
L     a.      J   and  the  feoffee  shall  not  maintainc  any  writ  of  right;  3S  E.  3.  16. 

for  a  bare  right  shall  never  be  left  in  the  feoffee,  but  ft*r^ at  r^^ 
shall  ever  follow  the  possession,  as  hath  beene  said:  but  if  the  IcZn,  I!"^^^ 
disseisee  entreth  upon  the  heire  of  the  disseisor,  and  make  a  Vide  Sect.  447. 
feoffment  in  fee  upon  condition,  and  entreth  for  the  condition 
broken  before  the  heire  of  the  disseisor  enter,  hee  is  restored  to 
his  right  againe. 

^A  man  maketh  a  gift  in  taile,  the  remainder  in  fee,  tenant  in  9  h.  7.  24. 
taile  dieth  without  issue,  an  estranger  intrude,  and  he  in  the 
remainder  brings  a  formedon,  and  recovcreth  by  default,  and 
maketh  a  feoffment  in  fee,  the  intruder  reverse  the  recoverie  in 
a  writ  of  disceit  and  entreth,  he  shall  detaine  the  land  for  ever, 
and  the  feoffee  shall  not  have  a  writ  of  right. 

And  so  likewise  if  a  disseisor  die  seised,  and  a  stranger  abate,  9  n.  7.  24. 
and  the  disseisee  release  to  him,  the  heire  of  the  disseisor  shall 
enter  and  detaine  the  land  for  ever.  For  the  right  to  the  pos- 
session shall  draw  the  right  of  the  land  to  it,  and  shall  not  leave 
a  right  in  him  to  whom  the  release  is  made,  as  bath  been  said 
before  in  the  447  Section. 

"  The  right  of  the  disseisee  jJasseth  to  the  tenant,  and  is  in  the 
tenant.  For  seeing  the  tenant  hath  the  whole  fee  simple,  he  is 
capable  of  the  whole  right  of  the  disseisee,  and,  as  Littleton  here 
saith,  the  right  is  in  the  tenant. 

"It  should  he  inconvenient."  Here  againe,  as  hath  becne  vide  Sect  87 
often  observed,  an  argument  ah  iiiconvenienti  is  forcible  in  law;  138,  139.  231." 
and  that  judges  by  the  authoritie  of  our  author  are  to  judge  of  ^69.  440.  722. 

inconveniences  as  of  things  unlawful  (A)  as  hereby 
r279.~j  and  O^by  many  other  places  it  appeareth. 

"  A  right  cannot  die."  Dormit  aliquando  jus,  moritnr 
minquam.  For  of  such  an  high  estimation  is  right  in  the  eye  of 
the  law,  as  the  law  preserveth  it  from  death  and  destruction : 
trodden  downe  it  may  bee,  but  never  trodden  out.  For  where  it 
hath  beene  said,  that  a  release  of  right  doth  in  some  cases  enure 
by  way  of  extinguishment,  it  is  so  to  be  understood,  cither  (as 
Littleton  doth  here)  in  respect  of  him  that  makes  the  release  or 
in  respect  that  by  construction  of  law  itcnureth  not  alone  to  him 
to  whom  it  is  made,  but  to  others  also  who  be  estrangers  to  the 

release, 

(A)    Vid.  ante  66.  a.  n.  1.  as  to  the  necessity  of  qualifying  the  maxim  here  alluded  to. 


in  any  of  her  majesty's  courts;  and  the  statute  of  32  Hen.  8.  was  repealed. 
In  consequence  of  the  last  proviso  in  the  statute,  a  tenant  for  life  may  now 
join  with  the  person  in  remainder  or  reversion,  in  suffering  a  common  recovery. 
This  was  first  settled  in  Wiseman  v.  Crow,  Cro.  Eliz.  5G2;  and  is  every  day's 
practice. 

It  sometimes  happens,  that  a  tenant  in  tail  supposing  himself  seised  in  fee 
executes  a  settlement,  and  takes  an  estate  for  life  under  it :  a  question  has  been 
made,  whether  such  a  tenant  for  life  is  prevented  from  suffering  a  recovery  by 
the  statutes  cited.  It  seems  to  be  clear,  that  he  is  not;  as  all  die  deeds  must 
be  considered  as  forming  one  conveyance,  and  as  referring  back  to  the  original 

conveyance,  executed  by  the  party  when  he  was  actually  tenant  in  tail; so 

that  the  recovery,  and  the  deed  leading  the  uses  of  it,  o'perate  merely  by  way 
of  further  assurance. — [Note  244*.]  j    j       j 


279.  b.]  Of  Releases.       L.  3.  C,  8.  Sect.  479. 

release,  which,  as  hath  beene  saiJ,  is  a  qualitie  of  an  inheritance 
extinguished. 
14  H.  8.  6.  b.  As'if  there  be  h^rd  and  tenant,  and  the  tenant  maketh  a  lease 

for  life,  the  remainder  in  fee,  if  the  lord  release  to  the  tenant 
for  life,  the  rent  is  ^vholly  extinguished,  and  he  in  the  remain- 
der shall  take  benefit  thereof;  even  so  when  the  heire  of  a  dis- 
seisor is  disseised,  and  the  disseisor  make  a  lease  for  life,  the 
remainder  in  fee,  if  the  first  disseisee  release  to  the  tenant  for 
life,  this  is  said  to  enure  by  way  of  extinguishment,  for  that  it 
shall  enure  to  him  in  the  remainder,  who  is  a  stranger  to  the 
release;  and  yet  in  truth  the  right  is  not  extinct,  but  doth  fol- 
low the  possession,  viz.  the  tenant  for  life  hath  it  during  his 
time,  and  he  in  the  remainder  to  him  and  to  his  heires,  and  the 
right  of  the  inheritance  is  in  him  in  the  remainder;  for  a  right 
to  land  cannot  die  or  be  extinct  in  deed;  and  therefore,  if  after 
the  death  of  tenant  for  life,  the  heire  of  the  disseisor  bring  a 
writ  of  right  against  him  in  the  remainder,  and  he  joyne  the 
mise  upon  the  meere  right,  it  shall  be  found  for  him,  because 
in  judgment  of  law  he  hath  by  the  said  release  the  right  of  the 
first  disseisee. 


Sect.  479. 

'RUT  releases  which  enure  ly  way  of  extinguishment {\)  against  all 
persons,  are  where  hee  to  tvhom  the  release  is  made  cannot  have 
that  which  to  him  is  released.  As  if  there  bee  lord  and  tenant,  and 
the  lord  release  to  the  tenant  all  the  right  ivhich  hee  hath  in  the  seig- 
niory, or  all  the  right  tvhich  he  hath  in  the  land,  ^-c.  this  release  goeth 
hy  way  of  extinguishment  against  all  persons,  because  that  the  tenant 
cannot  have  *  service  to  receive  of  himself  e, 

14  H.  8.  fol.  5, 6.  TJYjR^  Littleton  putteth  a  diversity  betweene  releases  which 
11  H.  7.  25.  '  JjL  enure  by  way  of  extinguishment  against  all  persons,  and 
,30  H.  6^  m.  -whereof  all  persons  may  take  advantage,  and  releases-  which  in 
38^E.%ri'o.  respect  of  some  persons  enure  by  way  of  extinguishment,  and  of 

other  persons  by  way  of  mitter  le  droit:  or  betweene  releases 
which  in  deed  enure  by  extinguishment,  for  that  hee  to  whom 
the  release  is  made,  cannot  have  the  thing  released,  and  releases 
which,  having  some  quality  of  such  releases,  are  said  to  enure 
by  way  of  extinguishment,  but  in  troth  doe  not,  for  that  he  to 
whom  the  release  is  made  may  receive  and  take  the  thing  re- 
leased. x\nd  here  Littleton  putteth  cases  where  releases  do 
absolutely  enure  by  extinguishment  without  exception,  having 
respect  to  all  persons.  And  first  of  the  lord  and  tenant :  secondly, 
of  the  rent-charge  :  thirdly,  of  the  common  of  pasture. 

Sect. 

*  service  to  receive — this,  L.  and  M.  and  Roh. 


(1)  Here  Littleton  returns  to  releases  by  extinguishment.     See  ant.  268. 


L.  3.  C.  8.  Sect.  480.       Of  Releases.       [279.  b.  280.  a. 


Sect.  480. 

TN  the  same  manner  is  it  of  a  release  made  to  the  tenant  of  the  land  of 
a  rent-charge  or  common  of  pasture,  tfc.  because  the  tenant  cannot 
have  that  tohich  to  him  is  released^  ^c.  so  such  releases  shall  enure  by  way 
of  extinguishment  in  all  ways  (issint  tiels  releases  urera  *  per  extin- 
guishment en  touts  voyes). 

tT7IRST,  of  the  lord  and  tenant,  and  the  lord  release 
980.1  -*-  to  the  tenant  his  seigniorie,)J@°"  this  must  of  neces- 
a.  J  sity  enure  by  way  of  extinguishment  to  all  men  ;  for  the 
tenant  cannot  have  service  to  be  taken  of  himselfe,  nor 
can  one  man  be  both  lord  and  tenant.  The  second  is  of  a  rent-  (2  Rol.  Abr. 
charge  ;  a  man  cannot  have  land  and  a  rent  issuing  out  of  the  ""'^ 
same  land.  Thirdly,  a  man  cannot  have  land  and  a  common  of 
pasture  issuing  out  of  the  same  land,  etsic  de  caeteris.  For  in  all 
these  cases  and  the  like  he  to  whom  the  release  is  made  cannot 
have  and  enjoy  the  thing, that  is  released.  But  in  the  case  of  the 
right, of  the  land,  the  tenant  of  the  land  may  take  and  enjoy  it 
for  strengthening  his  estate  therein. 

The  mesne  being  afemeentei'marrie  with  the  tenant  peravaile,  (Ant.  273.  b.) 
if  the  lord  release  to  the  feme,  the  seigniorie  only  is  extinct ; 
but  if  hee  release  to  the  husband,  both  seigniorie  and  mesnaltie 
are  extinct.  And  in  this  case,  if  the  lord  release  to  the  husband 
and  wife,  it  is  a  question  how  the  release  shall  enure ;  but  it  is 
no  question  but  that  a  release  may  be  made  to  a  mesnaltie  or  a 
seigniory  suspended  in  part  of  tlie  estate. 

But  here  observe  a  diversity  where  a  release  enureth  by  way  of  (274.  a.  1  Roll, 
extinguishment  of  an  inheritance,  which  is  in  possession  and  may  ,j^^^  21*4  a 
be  granted  over,  and  a  release  of  a  right,  or  an  action  to  lands  232.  b.  206.  a.) 
which  cannot  be  granted  over,     [r]  For  the  lord  may  release  his  M  l-^  E-  3. 
seigniorie  to  the  tenant  of  the  land  for  life  or  in  taile,  et  sic  de  ^^'^^^  Brud5e45" 
ccvteris.     But  so  cannot  one  release  a  right  or  an  action  ;  for  if  et  tit.  Voucher, 
it  be   released  but  for  an  houre,  it  is  extinct  for  ever,  as  hath  F.  120. 
beene  said.  ^g  ^'  g'  ^^'g 

And  two  things  are  to  be  observed  here.     First,  that  by  the  21  E.  3.'  33." 
release  of  all  the  right  in  the  land  the  seigniorie  is  extinct,  as  well  38  Ass.  17. 
as  by  the  release  of  all  the  right  in  the  seigniorie,  for  the  seig-  ^^ ,  •  ^'  'j* 
niorie  issueth  out  of  the  land.     Secondly,  that  by  the  release  of  xs  F.  2.'ibid.  5. 
all  his  right  in  the  seigniorie  or  the  land,  the  whole  seigniorie  is  26  H.  8.  5. 
extinct  without  any  words  of  inheritance.     If  the  tenancie  be  ^^  '^^*-  ^* 
given  to  a  lord  and  to  a  stranger,  and  to  the  heires  of  the  stranger, 
the  lord  release  to  his  companion   all  the  right  in  the  land,  this 
release  doth  not  onely  passe  his  estate  in  the  tenancie,  but  ex- 
tinguisheth  also  his  right  in  the  seigniorie,  and  so  one  release 
enures  to  extinguish  severall  rights  in  one  and  the  same  land. 

If  there  be  lord  and  tenant  by  fealty  and  rent,  the  lord  granteth 
the  seigniorie  for  ycares,  and  the  tenant  atturneth,  the  lord  re- 
leaseth  his  seigniorie  to  the  tenant  for  yeares,  and  to  the  tenant 
of  the  land  generally,  the  whole  seignorie  is  extinct  and  the  state 

of 

*  per  extinguishment  en  touts  voyes,         envars  toutz  persons,  L.  and  M.  and 
— toutz  foitz  per  voi  d'extientisement         Roh. 


280.  a.  280.  b.]        Of  Keleases.     L.  3.  C.  8.  Sect.  481. 

of  the  lessee  also.  But  if  the  release  had  beene  to  them  and 
their  heircs,  then  the  lessee  had  had  the  inheritance  of  the  one 
moitie,  and  the  other  moitie  had  beene  extinct.  And  the  reason 
of  this  diversity  is,  because  when  the  release  is  made  generally, 
it  can  enure  to  the  lessee  but  for  life,  because  it  enureth  by  v/ay 
of  enlargement  of  estate,  and  being  made  to  the  tenant  of  the 
land,  it  enureth  by  way  of  extinguishment,  as  Littletonhere  saith, 
and  then  there  cannot  remaine  a  particular  estate  in  the  seigniorie 
(Ant.  152.  b.)  for  lifc.  But  when  the  release  is  made  to  them  and  their  heires, 
(Mo.  59.)  gj^g]j  Qjjg  takes  a  moitie,  the  one  by  way  of  encreasing  of  the 

state,  and  the  other  by  extinguishment. 


Sect.  481. 


A  LSO,  to  prove  that  the  grand  assise  ought  to  passe  for  the  demandant, 
in  the  case  aforesaid,  I  have  often  heard  the  reading  of  the  statute  of 
West.  2.  which  begun  thus  (joe  aye  oye  sovent  *  la  lecture  cle  I'estatute 
de  Westminster  second,  que  commence)  :  In  casu  quo  vir  amiserit  per 
defaltam  tenementum  quod  fait  jus  uxoris  su£e  &c.  that  at  the  common 
law  before  the  sayd  statute  (devant  f  mesme  I'estatute),  if  a  lease  were 
made  '^to  a  man  for  terme  of  life  (si  lease  soit  fait  J  a  un  home  pur  terme 
de  vie)  the  remainder  over  in  fee,  and  a  stranger  by  feigned  action 
(per  feint  action)  recovered  against  the  tenant  for  life  by  default,  and  after 
the  tenant  dieth  (et  puis  §  le  tenant  morust),  he  inthe  remainder  had  no 
remedie  before  the  statute,  because  he  had  not  any  possessioii  of  the  land. 

(2  Inst.  345.)  "  T  HA  VE  often  heard,  the  reading  of  the  statute  of  West.  2." 
Here  it  is  to  be  observed,  of  what  authoritie  antient  lectures 
or  reading's  upon  statutes  were,  for  that  they  had  five  ex- 
cellent qualities.  First,  they  declared  what  the  com- 
mon f^°  law  was  before  the  making  of  the  statute,  as  FQSO.l 
here  it  appeareth.  Secondly,  they  opened  the  true  L  b.  J 
sense  and  meaning  of  the  statute.  Thirdly,  their  cases 
were  briefe,  having  at  the  most  one  poynt  at  the  common  law, 
and  another  upon  the  statute.  Fourthly,  plaine  and  perspicuous, 
for  then  the  honour  of  the  reader  was  to  excel  others  in  autho- 
rities, arguments,  and  reasons  for  proofe  of  his  opinion,  and  for 
confutation  of  the  objections  against  it.  Fifthly,  they  read,  to 
suppresse  subtill  inventions  to  creepe  out  of  the  statute.  But 
now  readings  having  lost  the  said  former  qualities,  have  lost  also 
their  former  authorities  :  fornow  the  cases  are  long,  obscure, and 
intricate,  full  of  new  conceits,  like  rather  to  riddles  than  lectures, 
which  when  they  are  opened  they  vanish  away  like  smoke,  and 
the  readings  are  like  to  lapwings,  who  seeme  to  bee  neerest  their 
nests  when  they  are  farthest  from  them,  and  all  their  studie  is  to 
find  nice  evasions  out  of  the  statute.  By  the  authority  of  Little- 
ton, ancient  readings  may  be  cited  for  proofe  of  the  law ;  but 

new 

*  en  added  in  L.  and  M.  and  Roll.         |  a  un  home— al  tenant,  L.  and  M. 
f  mesme    not    in    L.    cend   31.    or     and  Rah. 
Hoh.  §  le  tenant,  not  in  L.  and  M.  or  Roll. 


L.  3.  C.  8.  Sect.  482.      Of  Releases.       [280.  b.  281.  a. 

new  readings  Lave  not  that  honourj  for  that  they  arc  so  obscure 
and  darke. 

"  Tlie  statute  of  West.  2."     Which  is  the  third  chapter. 

"  The  remainder  over  in  fee.'"     Here  is  to  be  observed,  that 

although  the  statute  speaketh  of  a  reversion  [a],  yet  by  the  autho-  [„]  24  E.  3.  35. 

rity  of  Littleton  a  remainder  is  within  the  statute.  28  E.  3.  ye. 

See  the  statute  of  14  EUz.  cap.  8,  which  provideth  fully  for  ^^^^\^''J^_ 

him  in  the  remainder.  3  E.  2.  Entric,  7. 

6  E.  3.  24. 

"  Feigned  action,  (feint  action)."     Feint  is  a  participle  of  the  7  E.  3.  Eut.  62, 
French  word  feindre,  which  is  to  feigne  or  falsely  pretend,  so  l^^^'J'%^''' 
as  a  feint  action  is  a  false  action  (A).  p.  N.  B.  217.  D. 

,,         ,-,  TT  •  1     Register,  241, 

"  Had  no  remedie  before  the  statute.        [6]  Here  it  appcareth  [&]  w.  2.  cap.  5, 

by  Littleton,  that  if  a  man  maketh  a  lease  for  life,  the  remainder  Vido  34  E.  3. 

in  fee,  and  tenant  for  life  suffreth  a  recovery  by  default,  that  he  ^  ™  3*^"^-^  31 

in  the  remainder  should  not  have  a  formedon  by  the  common  s  E.  3.  59. 

law:  for  Littleton  saith,  that  he  hath  not  any  remedy  before  the  E.  N.  B.  217. D. 

statute.     Neither  is    there  any  such  writ  in  that  case  in  the  ''  ^-  ^-  ^•'''• 

Register,  albeit  in  some  bookes  mention  is  made  of  such  a  writ. 


Sect.  482. 

J)  UT  if  he  in  the  remainder  had  entered  upon  the  tenant  for  life,  and 
disseised  him,  and  after  the  tenant  enter  upon  him,  and  after  the 
tenant  for  life  by  sueh  recoverie  lose  by  default  and  die,  now  he  in  the 
remainder  may  ivell  have  a  writ  of  riyht  against  him  which  recovers, 
because  the  mise  shall  be  joyned  only  upon  the  mere  right,  ^"c.  Yet  in 
this  case  the  seisin  of  him  in  the  remainder  was  defeated  by  the  entry  of 
the  tenant  for  life.  But  peradventure  some  toill  argue  and  say,  that 
hee  shall  not  have  a  writ  of  right  in  this  case,  for  that  when  the  mise  is 
joyned,  it  is  joyned  in  this  manner  (scilicet),  if  the  tenant  hath  more 
mere  7'ight  in  the  land  in  the  tnanner  as  he  holdeth,  than  the  demandant 
hath  in  the  manner  as  hee  demandeth,  and  for  that  the  seisin  of  the 
demandant  was  defeated  by  the  entry  of  the  tenant  for  term  of  life,  ^c. 
then  lie  hath  no  right  in  the  manner  as  he  demandeth. 

HEllE  a  disseisin  (B)  gotten  by  wrong,  and  defeated  by  the  •'58  E.  3.  tit. 
entrie  of  him  that  right  hath,  is  sufficient  to  maintaine  a  ''''™'  ^'''"'^'  ^• 
writ  of  right  against  the  recoveror  in  this  case,  for 

[281. 1  albeit  JG®""  the  seisin  is  defeated  between  the  lessee  for 
a.     J   life  and  him  in  the  remainder,  yet  having  regard  to  the 

recoveror,  who  is  a  meere  stranger,  and  hath  no  title,  ^g  j^  3_  ^j 
it  is  sufficient  against  him.  But  otherwise  it  is  against  the  party  tit.  Jur.  Utr.  1. 

himselfe 


(A)  Vide  Sect.  6S8  &  689;  for  Littleton  there  makes  a  distinction  betiveen  a  feint  action  and 
a  false  action. 

(B)  disseisin  seems  to  be  here  printed  hy  mistake  instead  of  seisin  ;  as  it  was  the  tortious  seisin, 
which  the  remainder-man  acquired  hy  his  disseisin  of  the  tenant  for  life,  that  enabled  him  to  dt- 
fcat,  in  a  writ  of  right,  the  recoveror  by  the  defaxdt  of  the  tenant  for  lift. 


281.  a.  281.  l)J.       Of  Releases.       L.  3.  C.  8.  Sect.  483. 

himselfe  that  defeated  the  seisin,  and  the  law  is  propense  to  give 

(Post.  315.  a.)      remedie  to  him  that  right  hath.    And  where  some  have  thought, 

that  there  is  no  authority  in  law  to  warrant  Littleton' s  opinion 

herein,  they  are  greatly  mistaken,  for  Littleton  hath  good  warrant 

for  all  that  he  hath  written. 

Lands  are  letten  to  A.  for  life,  the  remainder  to  B.  for  life,  the 

remainder  to  the  right  heirs  of  A;  A.  dieth,  B.  entreth  and 

dieth;  a  stranger  iutrudeth,  the  heire  of  A.  shall  have  a  writ  of 

right  of  the  seisin  which  A.  had  as  tenant  for  life. 

(Ant.  184.  a.b.)        Lands  are  letten   to  A.  and   B.  and  to  the  heirs  of  A. :    A. 

dyeth ;  a  recovery  is  had  against  B.  ;  the  heir  of  A.  shall  have 

a  writ  of  right  to  the  whole,  for  every  joyntenant  is  seisedperwy 

et  jicr  tout. 

If  lands  be  given  in  tayle,  the  remainer  to  A.  in  fee,  the  donee 

dyeth  without  issue,  his  wife  privement  enseint,  A.  entreth,  the 

issue  is  borne  and  entreth  upon  him  and  dyeth  without  issue, 

A.  shall  have  a  writ  of  right  of  the  seisin  which  he  had. 

42  E.  3.  16, 17.        If  lands  be  given  in  tayle  to  A.  the  remainder  to  his  right 

heires,  A.  dieth  without   issue,  the  collaterall  heire  of  A.  shall 

have  a  writ  of  right  of  the  seisin  of  A. 

(Ant.  14.  b.  ^^^  ^0  "^0*^^  ^  diversity  betweene  a  seisin  to  cause  possesiyio 

15.  a.)  frdtris,  &c.  for  there  is  required  a  more  actuall  seisin,  and  a 

40  E.  3.  8.  seisin  to  maintaine  a  writ  of  right.     And  hereby  also  are  the 

42  E.  3.  20.  /p     \  •      xu-     C3     *•  1-1 

S7  Ass.  4.  (ttT.)  m  this  bection  explained. 

24  E.  4.24.     7  H.  5.  4.     1111.4.11. 


SJra'l...,  Sect.  488. 

(6  Rep.  24. ) 

^0  this  it  may  bee  said,  that  these  words  (modo  et  forma 

prout,  &c.)  in  many  cases  are  toords  ]g^^  of  forme  of  f  281.1 
pleading,  and  not  tvords  of  substance.  For  if  a  man  bring  a  L  b-  J 
writ  of  entrie  in  casu  proviso,  of  the  alienation  made  by  the 
tenant  in  dower  to  his  disinheritance,  and  counteth  of  the  alienation 
made  in  fee,  and  the  tenant  saith,  that  he  did  not  alien  in  manner  as 
the  demandant  hath  declared,  and  upon  this  they  are  at  issue,  and  it  is 
found  by  verdict  that  the  tenant  aliened  in  taile,  or  for  tearme  of  another 
onan's  life,  the  demandant  shall  recover  :  yet  the  alienation  was  not  in 
manner  as  the  demandant  hath  declared,  ^c. 


\\' 


/'HERE  modo  etformd  are  of  the  substance  of  the  issue,  and 
where  but  words  of  forme,  this  diversity  is  to  be  observed. 
[c]'9  H  6.  L  j^c]  Where  the  issue  taken  goeth  to  the  point  of  the  writ  or  action, 
21  E  4  22*  there  modo  etformd  are  but  words  of  forme,  as  here  in  the  case 

F.  N.  B.  206.  G.  of  the  writ  of  entrie  in  casu  proviso,  and  so  is  the((tT.)  well  ex- 
40  E.  3.  5.  plained  in  this  Section.     But  otherwise  it  is  when  a  collaterall 

Br^'o*^'  Vid^'  P*^^'^*'  ^"^  pleading  is  traversed ;  as  if  a  feoffment  be  alleadged  by 
Sect,  sequent!.  two,  that  this  it  traversed  modo  et  forma,  and  it  is  found  the  feoff- 
ment of  one,  there  modo  et  formd  is  materiall.  So  if  a  feoffment 
12  E.  4.  4.  ^  be  pleaded  by  deede,  and  it  is  traversed  absque  hoc  quodfe.offavit 
^-^T'^\ll\'  ^^^'^''^  etformd;  upon  this  collaterall  issue,  modo  etformd  are  so 
'      "       essentiall  as  the  jury  cannot  find  a  feoffment  without  deed. 

Sect. 


L.  3.  C.  8.  Sect. 484.     Of  Releases.  [281.  b.  282.  a. 


Sect,  484. 

A  LSO,  if  there  hee  lord  and  tenant,  ayid  the  tenant  hold  of  the  lord  hy 
fealty  only,  *  and  the  lord  distreine  the  tenant  for  rent,  and  the 
tenant  bringeth  a  writ  of  trespasse  against  his  lord  for  his  cattell  so 
taken,  and  the  lord  plead  that  the  tenant  holds  of  him  hyfealtie  and  cer- 
taine  rent,  and  for  the  rent  hehinde  he  came  to  distreine,  ^c.  and  demand 
judgement  of  the  writ  brought  against  him,  quare  vi  et  armis,  &c.  and 
the  other  saith  that  hee  doth  not  hold  of  him  in  the  maimer  as  he  suj)p>ose, 
and  upon  this  they  are  at  issue,  and  it  is  found  by  verdict  that  he  holdeth 
of  hitn  by  fealty  onely  ;  in  this  case  the  writ  shall  abate,  and  yet  hee  doth 
not  hold  of  him  in  the  manner  as  the  lord  hath  said.  For  the  matter  of 
the  issue  is,  whether  the  tenant  holdeth  of  him  or  no  ;  for  if  hee  holdeth 
of  him,  although  that  the  lord  distreine  the  tenant  for  other  services 
which  he  ought  not  to  have,  yet  such  writ  of  trespasse  quare  vi  et  armis, 
&c.  doth  not  lie  against  the  lord,  but  shall  abate. 


"  TT  IS  found  hy  verdict  thathe  holdeth  of  him  hy  fealty  onely."  Vi.  Sect,  preced. 

'Here  is  anotlier  diversitie  to  be  observed :  Tliat  albeit  the  (8  Co.  89, 
issue  bee  upon  a  collaterall  point,  yet  if  by  the  finding  of  part  of  ^q  ^^4^7 
the  issue  it  shall  appeare  to  the  court  that  no  such  action  lieth  for  s  E.  '4.  "15! 
the  plaintife  no  more  than  if  the  whole  had  been  found,  there  20  E.  4.  3, 
modo  et  forma  are  but  words  of  forme,  as  here  in  the  case  which  ^}  ^-  ,'*•  ^* 
Littleton  putteth  of  the  lox'd  and  tenant  appeareth.  (Doc,  pf^.  191.' 

344.)* 

"  For  the  matter  of  the  issue  is,  whether  the  tenant  holdeth  of 

him  or  no,  &c."  (9  Rep.  33.) 

r382."|      Here  it  appeareth,  that  S^-  if  the  matter  of  the  issue  i^^°*'*2^7^'  ^^^' 
|_     a.     J  be  found  it  is  sufficient.  And  this  rule  holds  in  criminall  2  Roll.*A'br. 

causes.     For  if  A.  be  appealed,  or  indicted  of  murder,  704.  708. 
VIZ.  that  hee  of  malice  prepense  killed  /.    A.  pleadeththat  he  is  ^"V  ^'q 
not  guilty  modo  et  forma,  yet  the  jury  may  find  the  defendant  dqc.  Pla.  355. 
guilty  of  manslaughter  without  malice  prepensed,  because  the  344,  345.) 
killing  of  /.  is  the  matter,  and  malice  prepensed  is  but  a  cir-  ^^'xP'^^ql^^' 
cumstance.  [  cro!''i4. 16. 

Haw.  P.  C.  266.) 

In  assise  of  darreine  jnesentment,  if  the  plaintife  alleage  the  e  E.  3.  41.  b. 
avoydance  of  the  church  by  privation,  and   the  jurie  find  the  25  E.  3.  50. 
voydance  by  death,  the  plaintife  shall  have  judgment :  for  the  \}^j^'>,\a 
niauner  of  voydance  is  not  the  title  of  the  plaintife,  but  the  voyd-  29  E.'  3'.  ss! 
ance  is  the  matter.  {Sid.  21,  22.) 

[(Z]  If  a  gardeine  of  an  hospitall  bring  an  assise  against  the  j.^°^'  ^^^-  ^^^'^ 
ordinary,  he  pleadeth  that  in  his  visitation  he  deprived  him  as  g  ass.  29  &  39. 
ordinary,  whereupon  issue  is  taken,  and  it  is  found  that  he  de-  9  E.  3.  338. 
prived  him  as  patron,  the  ordinary  shall  have  judgement,  for  the  ?*t?'?"|'^' 
deprivation  is  the  substance  of  the  matter.  7  jj|  4]  {^ 

PI.  Com.  92.  3  Mar.  Dier,  116.  40  E.  3.  35.  Dier,  2  &  3  Ph.  &  Mar.  115.  b. 
Trin.  22.  Eliz.  Rot.  920.  Wolman's  case.  41  E.  3.  28.  34  Ass.  3.  30  Ass.  5.  33 
E.  3.  Verdict,  47.  22  E.  3.  1.  b.  18  E.  3.  48.  31  E.  3.  Account,  58.  28  Ass.  48. 
(2  Roll.  Abr.  704.  719.) 

The 
*  and  — if,  L.  and  M.  and  Roll. 


282.  a.  282.  b.J         Of  Releases.      L.  3.  C.  8.  Sect.  ^85. 

The  lessee  covenant  with  the  lessor  not  to  cut  downe  any  trees, 
and  bind  himself  in  a  bond  of  forty  pounds  for  performance  of 
covenants,  the  lessee  cut  downe  ten  trees,  the  lessor  bringeth  an 
action  of  debt  upon  the  bond,  and  assigneth  a  breach  that  the 
lessee  cutteth  down  twenty  trees,  whereupon  issue  is  joined,  and 
the'jury  finde  that  the  lessee  cut  downe  ten,  judgement  shall  be 
given  for  the  plaintife ;  for  sufficient  matter  of  the  issue  is  found 
for  the  plaintife. 

Sect.  485. 


J  LSO,  in  a  ivrltof  trespasse  for  batterie,  or  for  goods  carried  aivay,  if 
the  defendant  plead  not  guilty,  in  manner  as  the  plaintife  suppose, 
and  it  is  found  that  the  defendant  is  guiltie  in  another  toivne,  or  at 
another  dag  than  the  plaintife  supposes,  get  hee  shall  recover  ( Auxy,  *  en 
briefe  cle  trespasse  de  batterie,  ou  des  biens  emports,  si  le  defendant 
plede  de  rien  culpable,  en  le  manner  eomele  plaintife  suppose,  et  trove 
est  que  le  defendant  est  culpable  en  auter  ville,  ou  a  auter  jour  que  le 
plaintife  suppose,  uncore  11  recovera).  And  f  so  in  many  other  cases 
(en  X  plusors  auters  cases)  these  words,  viz.  in  manner  as  the  demandant 
or  the  plaintife  hath  supposed,  do  not  make  any  §  matter  of  substance 
of  the  issue  ;  for  in  a  writ  of  right,  ivhere  the  mise  is  joyned  upon  the 
meere  right,  that  is  as  much  as  to  sag,  and  to  such  effect,  viz.  whether 
the  tenant  or  demaundant  hath  more  meere  right  to  the  thing  in  dematid. 

(11  Rep.  5.)  "  7^^^  ^  writ  of  trespasse  for  batterie,  or  for  goods  carried 

(7  Rep.  2.  b.  J-  ait-ai/,"  &c. 

Doc.  Pk.  93.  '  Here  Littleton  speaketh  of  actions  brought  for  things  transi- 
369.  386.)  tory.     In  which  cases  the  wrong  being  done  in  one  towne,  the 

plaintife  may  not  only  alledge  it  in  another  towne,  as  Littleton 
here  saith,  but  also  in  another  county,  and  the  jurors  upon  not 
guilty  pleaded  are  bound  to  find  for  the  plaintife. 
(1  Roll. Abr. 335.  Neither  can  the  assault,  battery,  or  taking  of  goods,  &c.  al- 
Hob.  103, 104.  ledged  in  another  county,  be  traversed  without  speciall 
0  Rep  77)  '"  JJ^^'cause  of  justification  which  extendeth  to  some  cer-  r283."| 
(1  Rep.  1.  396.  taine  place;  as  if  a  constable  of  a  towne  in  another  L  ^-  J 
6  Rep.  65.  b.        county  arrest  the  body  of  a  man  tkat  breaketh  the  peace, 

2  Cro  45^372"  there  he  may  traverse  the  county  (but  he  must  not  rest  there) 
Noy,  57.  but  all  other  places  saving  in  the  towne  whereof  he  is  constable. 

3  Cro.  353.  And  SO  it  is  of  takino;  of  goods,  if  the  defendant  iustifie  for  da- 
a°Leo  39"  mage  feasant  in  another  county  he  must  traverse  as  before.  But 
Sid.  234.  294.  where  the  cause  of  the  justification  is  not  restrained  to  a  certaine 
3  Rep.  52.  b.  place,  that  is  so  locall  as  it  cannot  be  alledged  in  any  other  towne, 
Ant.  l4o.  b.  j^g  jj^  ^i^g  cases  before  alledged,  and  the  like,  then  albeit  the  action 
2  Sid.  ll's.  "  bee  brought  in  a  forraine  countie,  yet  he  must  alledge  his  justifi- 
Cro.  El.  99.)         cation  in  the  county  where  the  action  is  brought.    As  if  a  man  be 

beaten  in  the  county  of  Middlesex,  and  hee  bringeth  his  action  in 
the  county  of  Buck,  the  defendant  cannot  pleade  that  the  plaintife 
assaulted  him  in  the  county  of  Midd.  &c.  and  traverse  the  county, 

but 

*  en — un,  L.  and  M.  and  Roh.  §  matter — manner  L.  and  M.  and 

t  so,  not  in  L.  and  M.  or  Roh.  Roh. 

t  moltes  added  in  L.  and  M.  and 
,Roh. 


L.  3.  C.  8.  Sect.  485.       Of  Releases.  [282.  b. 

but  he  must  pleade  his  justification  in  the  county  of  Buch,  for 

that  the  cause  of  his  justification  is  good  in  any  place.     And  so 

it  is  in  case  of  bailement  of  goods,  and  other  cases  of  transitory 

things;  as  for  example  : 

In  an  action  upon  the  case  the  plaintife  declared  for  speaking  Trin.  30  Eliz. 

of  slanderous  words,  which  is  transitory,  and  laid  the  words  to  be  ^-^J^l^  bllweene 

spoken  in  London,  the  defendant  pleaded  a  concord  for  speaking  ingiebert  and 

of  words  in  all  the  counties  of  England,  saving  in  London,  and  Jones.    And 

traversed  the  speaking  of  the  words  in  London  :  the  plaintife  in  ^"'^^f'jl^  'udse- 

his  replication  denied  the  concord,  whereupon  the  defendant  de-  dentin  the 

murred,  and  judgment  was  given  for  the  plaintife.  For  the  court  court  of  common 

said,  that  if  the  concord  in  that  case  should  not  be  traversed,  it  Pl®ijf,'.  ^''l!'"^ 
'      „  ,,  ,        ,  ,       1  ,-,    •  ,■         ^    1      T  -38  Eliz.  Rot 

would  follow,  that  by  a  new  and  subtile  invention  ot  pleading,  an  je5g_ 

ancient  principle  in  law  (that  for  transitorie  causes  of  action  the 
plaintife,  might  alledge  the  same  in  what  place  or  county  he 
would)  should  be  subverted,  which  ought  not  to  be  sufi'ered ; 
and  therefore  the  judges  of  both  courts  allowed  a  traverse  upon 
a  traverse  in  that  case  :  and  the  wisdome  of  the  judges  and  sages 
of  the  law  have  alwayes  suppressed  new  and  subtile  inventions  in 
derogation  of  the  common  law.  And  therefore  the  judges  say  in 
one  booke  [t],  We  will  not  change  the  law  which  alwayes  hath  W  38  E.  3. 1, 
been   used.      And  another  saith   [/],  It  is  better  that  it  be  Ant'^72. 
turned  to  a  default,  than  the  law  should  be  changed,  or  any  inno-  Mo.  350. 
ration  made.  f/"^/^  h'^I'^S 

31  E.  3.     Gager  deliver.  5. 

A  man  did  grant  a  rent,  with  a  new  invented  clause  of  dis- 
tresse,  viz.  that  the  grantee  should  hold  the  distresse  against 
gages  and  pledges ;  and  yet  by  the  whole  court  he  shall  gage 
deliverance,  for  otherwise  by  this  new  invention  all  replevyes 
shall  be  taken  away. 

[*]  See  many  other  new  inventions  in  derogation  of  the  com-  P]  ^2  Ass.  12. 
mon  law  disallowed  by  the  judges,  and  by  the  court  of  parlia-  ^g  ^'^"^^  ^^\ 
ment.  &  ca.  6. 

4  H.  4.  ca.  2. 

[/i]  Where  the  jury  is  bound  to  finde  as  well  locall  things  in  [/(]  Li.  6.  fo.  46. 
many  cases  as  transitory  in  other  counties,  see  at  large  in  my  47.  Dowdale's 
Reports.  Ass.  446. 

27  E.  3.  86.     1  Ass.  16.     3  Ass.  4.      6  Ass.  4.     5  Ass.  7.     IS  E.  3.  38.     21  Ass.  8. 

29  Ass.  5.      44  E.  3.  6.  b.      14  II.  4.  35.      5  II.  5.  2.      10  H.  6.  13.      21  II.  6.  51. 

37  H.  6.  2.      7  E.  4.  45.      18  E.  4.  1.      22   E.  4.  19.      13  H.  7.  17.      2  Mar.  Br. 

Attaint.  104.     10  Eliz.  Dier,  171. 

By  this  which  hath  beene  said  you  shall  know  the  law  as  it  is 

now  in  use  in  these   cases   and   the  better  understand   our  [;']  t'T  19  H- 6- 48. 

books,  when  you  shall  reade  thcni  concerning  as  well  locall  as  ^^  j^'  3'  23.  b. 

transitory  things,  wherein  you  shall  finde  great  variety  of  opinion  40  e.  3.  3.  a, 

in  our  bookes.  ^^}\\^'J'i:^ 

21  H.  6.  27. 

14  H.  8.  24.  18  E.  4.  1.  20  H.  6.  2.  34  H.  6.  42.  14  H.  6.  21,  22.  4  II.  6.  13. 
33  H.  6.  25.  12  E.  4.  12.  28  II.  8.  Dier,  29.  21  E.  4.  19.  80.  27  II.  8.  19. 
12  II.  8.  1.  11  H.  4.  65.  19  II.  8.  6.  (Hob.  134.  1  Leo.  301.  Cro.  Car.  514. 
Cro.  Ja.  366.)  25  H.  8.  Br.  (Doc.  Pla.  197.)  22  II.  6.  33.  (4  Rep.  33.  2  Roll. 
Rep.  491.     Post.  303.     1  Leo.  228.) 

"  If  the  defendant  j^Iead  not  gui/i^."  This  is  a  good  issue,  if 
the  defendant  committed  no  battery  all ;  but  regularly  by  the 
common  law  if  the  defendant  hath  cause  of  justification  or  excuse, 

then 

Vol.  it.— 27 


282.  b.  283.  a.]         Of  Releases.       L.  3.  C.  8.  Sect.  485. 

then  can  he  not  pleade  not  guilty,  for  then  upon  the  evidence  it 
shall  be  found  against  him,  for  that  he  confesseth  the  battery, 
and  upon  that  issue  cannot  justitie  it,  but  he  must  pleade  the 
speciall  matter,  and  confesse  and  justifie  the  battery. 

The  like  law  is  in  other  cases,  and  therefore  this  is  a  learning 
necessary  to  be  knowne,  for  that  the  losse  of  most  causes  depend- 
eth  thereupon.  As  if  in  battery  the  defendant  may  justifie  the 
same  to  be  done  of  the  plaintife's  own  assault,  he  must  pleade 
it  specially,  and  must  not  pleade  the  generall  issue,  and  so  of  the 
like.  In  trespasse  of  breaking  his  close,  upon  not 
guilty  OO^  he  cannot  give  in  evidence,  that  the  beasts  r283."| 
came  thorow  the  plaintife's  hedge,  which  he  ought  to  |_  a.  J 
keep,  nor  upon  the  generall  issue  justifie  by  reason  of 
a  rent  charge,  common,  or  the  like. 

In  detinue  the  defendant  pleadeth  non  detinet,  he  cannot  give 
in  evidence  that  the  goods  were  pawned"  to  him  for  money,  and 
that  it  is  not  paid,  but  must  pleade  it;  but  he  may  give  in  evi- 
dence a  gift  from  the  plaiutife,  for  that  proveth  he  detaineth  not 
the  plaintife's  goods. 
[(T]  12  H.  8. 1.  [fZ]  So  in  an  action  of  waste,  upon  the  plea  mil  wast  fait,  he 

w  ^'  ^'ft  ^^y  S^^®  ^^  evidence  any  thing  that  proveth  it  no  waste,  as  by 

20  E.'s.  '  tempest,  by  lightning,  by  enemies,  and  the  like  ;  but  he  cannot 
Wast.  32.  give  in  evidence  justifiable  waste,  as  to  repaire  the  house,  or  the 
[e]  10  Ehz.  Wke.  [e]  If  one  doth  waste,  and  before  the  action  brought  the 
2  Mar  Diet  212.  lessee  repaireth  it,  and  after  the  lessor  bringeth  an  action   of 

waste,  and  the  lessee  pleade,  quod  7ion  fecit  vastuvi,  he  cannot 

give  in  evidence  the  especiall  matter. 
(1  Sid.  450.  If  two  men  be  bound  in  a  bond  joyntly,  and  the  one  is  sued 

Doc.  Pla.  19S.)     alone  he  may  plead  this  matter  in  abatement  of  the  writ ;  but 

he  cannot  plead  non  est  factum,  for  it  is  his  deed,  though  it  be 
[/]  Lib.  5.  not  his  sole  deed.  [/]  See  in  WJieljxJale  s  case,  where  a  man 
to.  119.  Whelp-  j^-jpy  safely  plead  non  est  factum,  and  where  not,  and  the  former 
7  E.  4  5.  books  that  treat  of  that  matter  well  reconciled. 

7  e'.  6.  Br.  non  est  fact.  14.     1  H.  7.  15.     14  H.  8.  28.     PI.  Com.  Dive  and 
Man  case.     36  H.  8.  Dier,  59.     2  Mar.  Dier,  112.     1  Eliz.  Di.  167. 

[;j]  Hill.  10. H.  8.  [^]  Upon plene  administravit  pleaded  by  an  executour  et  issint 
Kot.  323.  m  riens  inter  viaines,  if  it  be  proved  that  he  hath  goods  in  his  hands 
Mich.  6  E."  6.  which  were  the  testatour's,  he  may  give  in  evidence  that  he  hath 
in  com.  banco,  paid  to  that  value  of  his  owne  mony,  and  need  not  plead  it 
fu%''.t  specially  (1). 

6  H.  7.  10.     34  E.  3.      Droit.  29.      9  E.  3.  32.      8  E.  3.  24.      33  E.  3.  Verd. 
18  H.  6.  24.  39  H.  6.  38.  18  E.  3.  19.  PI.  Com.  81.  173.  21  H.  7.  76.    16  Kielw. 

21  E. 4. 11.  22  E.  4.45.  13  H.  7. 13.  Staundf.  PI.  Cor.  15.  22  Ass.  65.  37H.  6.  21. 
(Doc.  Plac.  198.     Ant.  227.  a.     Hob.  174.     Post.  303.  b.) 

In  an  assise,  if  the  tenant  plead  nul  tort  nul  disseisin,  he  can- 
not give  in  evidence  a  release  after  the  disseisin  ;  but  a  release 
before  the  disseisin  he  may,  for  then  there  is  no  disseisin  upon 
the  matter. 

In 


(1)  Yet  if  the  matter  he  pleaded  specialli/,  that  is  not  cause  of  demurrrr, 
though  it  amounts  to  ilie  ijeneral  issue,  because  it  has  no  colour  of  matter  i:i 
laic,  as  was  adjudjed  by  justice  Widmcslci/.  Hob.  127.  Lord  Nott.  MSS. — 
[Note  245.] 


L.  3.  C.  a  Sect.  485.         Of  Releases.  [283.  a. 

In  a  writ  of  right,  if  the  tenant  joyne  the  mise  upon  the  meere 
right,  he  cannot  give  in  evidence  a  collateral  warranty;  for  he 
hath  not  any  right  by  it,  and  therefore  it  ought  to  have  been 
pleaded. 

Of  this  learning  you  shall  reade  plentifully  in  our  bookes,  and 
in  my  Reports.  This  little  taste  shall  here  suffice  to  make  the 
reader  capable  of  the  rest.  Regularly  whensoever  a  man  doth 
any  thing  by  force  of  a  warrant  or  authority,  he  must  plead  it. 

But  all  that  hath  beene  said  must  be  under  two  cautions  :  first, 
that  whensover  a  man  cannot  have  advantage  of  the  speciall 
matter  by  way  of  pleading,  there  he  shall  take  advantage  of  it 
in  the  evidence.  For  example,  the  rule  of  law  is,  that  a  man 
cannot  justifie  in  the  killing  or  death  of  a  man  ;  and  therefore  in 
that  case  he  shall  be  received  to  give  the  especiall  matter  in 
evidence,  as  that  it  was  se  de/endendo,  or  in  the  defence  of  his 
house  in  the  night  against  theeves  and  robbers,  or  the  like. 

Secondly,  that  in  any  action  upon  the  case,  trespasse,  battery,  7  Ja.  Ca.  5. 
or  of  false  imprisonment  against  any  justice  of  the  peace,  maior,  or 
bailife  of  city  or  towne  corporate,  headborouah,  port-reve,  con- 
stable, tithingman,  collector  of  subsidy  or  fifteen,  in  any  his 
majesty's  courts  in  Westminster,  or  elsewhere,  concerning  any 
thing  by  any  of  them  done  by  reason  of  any  of  their  oflftces 
aforesaid,  and  all  other  in  their  aide  or  assistance,  or  by  their 
cpmmandement,  &c.  they  may  pleade  the  generall  issue,  and 
give  the  speciall  matter  for  their  excuse  or  justification  in  evi- 
dence. 

In  an  action  of  trespasse  or  other  suit  against  any  person  for  23  H.  8.  ca.  5. 
taking  of  any  distresse  or  other  act  doing  by  force  of  the  com- 
mission of  sewers,  the  defendant  in  any  such  action  shall  and 
may  make  avowry,  conusance,  or  justification  generally,  that  it 
was  done  by  authority  of  the  commission  of  sewers  for  lotte  or 
taxe  assessed  by  that  commission,  &c.  and  the  plaintife  shall  reply 
he  did  it  of  his  own  wrong  without  such  cause.  And  both 
these  acts  were  made  for  avoiding  of  prolixity  and  captiousnesse 
of  pleading,  tending  to  the  great  charge  and  danger  of  oflacers 
and  ministers  of  justice,  &c.  Evidence,  evidentia.  This  word  in 
legall  understanding  doth  not  only  containe  matters  of  record, 
as  letters  patents,  fines,  recoveries,  inrolments,  and  the  like,  and 
writings  under  scale,  as  charters  and  deeds,  and  other  writings 
without  scale,  as  court  roUes,  accounts,  and  the  like,  which  are 
called  evidences,  instrumenfa,  but  in  a  larger  sense  it  containeth 
also  testimonia,  the  testimony  of  witnesses,  and  other  proofes  to 
be  produced  and  given  to  a  jury,  for  the  finding  of  any  issue 
joined  betweene  the  parties.  And  it  is  called  evidence,  because 
thereby  the  point  in  issue  is  to  be  made  evident  to  the  jury. 
Frohationes  debent  esse  evidentes  (Jd  est) persjiiruee  et  facltes 
I'ntelliijl.     But  now  let  us  returnc  to  Littleton. 

"  Or  ut  anr4thcr  da/j  than  the  plaint  ife  supposes."   [h]  As  if  the   [//]  19  H.  6.  47. 
trespasse  were  done  the  fourth  of  ^lay,  and  the  plaintife  alledgeth  ''>  E.  4.  5. 
the  same  to  be  done  the  fifth  of  iNIay,  or  the  first  of  IMay,  vrhen  ^^.,.,j"  j'^^^  3gg^ 
no  trespasse  was  done ;  yet  if  upon  the  evidence  it  fallcth  out  i  Cro.  .^01.  514, 
that  the  trespasse  was  done  before  the  action  brought,  it  suf-  ^^^-  228,229. 
ficeth :  and  this  is  warranted  by  Littleton,  who  speaketh  indefi-  gjj  308 ) 
nitely,  that  the  jury  may  find  the  defendant  guilty  at  another 
day  than  the  plaintife  supposeth. 

"And 


283.  b,]       Of  Eeleases.  L.  3.  C.  8.  Sect.  486,  487. 

"  And  to  such  effect.'"     Here  is  to  bo  observed,  that 
the  law  of  England  respecteth  the  B®""  effect  and  sub-  ["283. "I 
stance  of  the  matter,  and  not  every  nicety  of  forme  or   |_    b.      J 
circumstance  :    Qui  liserct  in  literd,  hseret  in  cortice,et 
ajyices  juris  non  sunt  jura. 


Sect.  486. 

ALSO,  if  a  man  be  disseised,  and  the  disseisor  dyetli  seised,  ^c.  and 
his  Sonne  and  heire  is  in  hy  discent,  and  the  disseisee  enter  upon  the 
heire  of  the  disseisor,  which  entrie  is  a  disseisin,  ^c.  if  the  heire  bring  an 
assise,  or  a  writ  *  of  entrie  in  nature  of  an  assise,  he  shall  recover. 

AND  the  reason  hereof  is,  for  that  in  the  writ  of  right  men- 
tioned in  the  next  Section,  the  charge  of  the  grand  assise 
upon  their  oath  is  upon  the  meere  right,  and  not  upon  the  pos- 
session. 


Sect.  487. 

J)  TIT  if  the  heyre  bring  a  writ  of  right  against  the  disseisee,  he  shall 
bee  barred,  for  that  when  the  grand  assise  is  sworne,  their  oath  is 
upon  the  meere  right,  and  not  upon  the  possession.  For  if  the  heyre  of 
the  disseisor  sue  an  assise  of  novel  disseisin,  (car  si  I'heire  le  disseisor 
t  suist  un  assise  de  novel  disseisin),  or  a  W7'it  of  entrie  in  nature  of  an 
assise,  and  recovers  against  the  disseisee,  and  sueth  execution,  yet  may 
the  disseisee  have  a  ivrit  of  entrie  in  the  per  against  him,  for  the  disseisin 
made  to  him  by  his  father,  or  he  may  have  against  the  heire  a  ivrit  of 
right. 

(Ant.  266.  a.)       "  Z^  OR  if  the  heyre  of  the  disseisor,  &c."     Here  is  a  diversity  to 

be  observed  concerning  that  which  hath  beene  said,  when 

the  possession  shall  draw  the  right  of  the  land  to  it,  and  when 

6  E.  3.  7.  not.    And  therefore  when  the  possession  is  first,  and  then  a  right 

commeth  thereunto,  the  entry  of  him  that  hath  right  to  the  pos- 
session shall  gaine  also  the  right  which,  as  before  appeareth  in 
those  cases  there  put,  followeth  the  possession,  and  the  right  of 

Vid.  Sect.  447.  possession  draweth  the  right  unto  it;  but  when  the  nght  is  first, 
and  then  the  possession  commeth  to  the  right,  albeit  the  posses- 
sion be  defeated,  (as  here  in  Littleton's  case  it  is  by  the  heire  of 
the  disseisor,) yet  the  right  of  the  disseisee  remaineth. 

5  Ass.  1.  "  A  writ  of  entry  in  the  per."     A.  dyeth  seised,,  and  the  land 

10  Ass.  16.  descendeth  to  B.   his  sonne ;    before  he  entreth  an  estranger 

abateth  and  dyeth  seised,  B.  entreth,  against  whom  the  heire  of 

the 


•f  of  entrie  in  nature  of  an  assise,  her.     in  L.  and  M.    or  Roh.  but  in   both 
shall  recover.     But  if  the  heyre  bring     MSS. 
(the  beginning  of  nest  Section)  not         f  suist — forta,  L.  and  M.  and  Roh. 


L.  3.  C.  8.  Sect.  488-89-90.   Of  Eeleases.  [284.  a.  284.  b. 

the  abator  recovereth  in  an  assise,  B.  may  have  a  writ 

[984:. "I  of  mort  JJ^°  d'ancestcr,  and  recover  the  hiud  against 
a.     J  him.     And  if  the  disseisin  had  beene  done  to  A.  &c. 
then  after  the  recovery  in  the  assise,  B.  should  have 
bad  a  writ  of  entrie  in  the  per,  because  the  heyre  that  is  in  by 
discent  is  in  the  per. 


Sect.  488. 

^  UT  if  the  Jieire  ought  to  recover  against  the  disseisee  in  the  case 

aforesaid  hy  a  tvrit  of  right.,  then  all  his  right  should  be  cleerly 

taken  away,  for  that  judgement  final  shall  bee  given  against  him,  tvhich 

should  bee  against  reason  ivhere  the  disseisee  hath  the  more  meere  right. 

''JUDGEMENT finall"     The  forme  whereof  you  shall  see 
in  the  last  Section  of  this  chapter. 

"  Which  should  he  against  reason."     Argumentum  ah  incon-  ^^'^'^-  ^oct.  87. 
venienti.  ^p^^^^  295.  b.) 


Sect.  489. 

AND  Icnoiv  {my  sonne)  that  in  a  writ  of  right,  after  thefoure  knights 
have  chosen  the  grand  assize,  then  he  hath  no  greater  delay  than  in 
a  writ  of  formedon,  after  the  parties  be  at  issue,  ^c.     And  if  the  mise 
bee  joyned  upon  battaile,  then  he  hath  lesser  delay. 

"^ATTAILE."     See  for  this  word  in   the  last  Section  of  (Post.  294.  b.) 
this  chapter. 

"Issue,  <i'c."     Or  demurrer,  which  is  an  issue  in  law.  (5  Rep.  lOi.) 


Soot     4Q0  (2  Inst.  244.) 

OCl.t.   -iicFU.  (Ant.  266,  267.) 

A  LSO,  a  release  of  all  the  right,  ^c.  in  some  ease  is  good,  made  to 

him  tvhich  is  supposed  tenant  in  laiv,  albeit  he  hath  nothing  in  the 

tenements.     As  in  a  prgccipe  quod  reddat,  if  the  tenant  alien 

[384.1  ^^*^  land  hanging  the  tvrit,  and  after  the  demandant  relcaseth 
b.     J  10°"  to  him  all  his  right,  S^c.  this  release  is  good,  for  tha}  he 
is  supposed  to  be  tenant  by  the  suit  of  the  demandant,  and  yet 
hee  hath  nothing  in  the  land  at  the  time  of  the  release  made. 

Sect. 


284.  b.J  Of  Eeleases.      L.  3.  C.  8.  Sect,  491,  492. 


Sect.  491. 

TN  the  same  manner  it  is  if  in  a  praecipe  quod  reddat  the  tenant  vouch, 
and  the  vouchee  enters  into  warranty,  if  afterward  the  demandant 
release  to  the  vouchee  all  his  rigid  *,  this  is  good  enough,  for  that  the 
vouchee  after  he  hath  entred  into  warranty,  is  tenant  in  law  to  the  de- 
mandant, t  ^^• 

HERE  it  doth  appeare,  that  there  is  a  tenant  in  deed  and  a 
tenant  in  law,  and  Littleton  in  this  and  the  next  Section 

[h]  10  E.  4. 13.  putteth  two  examples  of  tenants  in  law,  viz.  [/t]  the  tenant  to  a 

12  Ass.  41.  jjraape  after  alienation,  and  of  the  vouchee,  whereof  somewhat 

23  E  ^3  21  ^^*''^  beene  said  before. 

25  e!  3'.  40*.  And  it  is  observable,  that  Littleton  saith,  that  in  both  cases 

38  E.  3. 10. 11.  hee  is  tenant  in  law  to  the  demandant,  and  yet  he  hath  nothing 
19  E ^3  ^^  *^^®  land.  And  therefore  if  after  the  vouchee  hath  entered 
tit.  Res'ceit.  iiito  warranty,  and  become  tenant  in  law,  an  ancestor  collaterall 
34  E.  3.  of  the  demandant  releaseth  to  the  vouchee  with  warranty,  he 
0  F'^4^ift^''  shall  not  plead  this  against  the  demandant,  for  that  the  release 

39  H.  6.  40.  by  the  estranger  is  voide,  which,  besides  the  authorities  before 
17  Ass.  24,  vouched,  appeareth  hy  Littleton  hiraselfe*;  for  he  saith,  that  he 
9fl^A  ^  ^*  '^^  tenant  in  law  to  the  demandant,  whereby  he  excludeth  that 
14  E.  3."'  ^^  ^s  tenant  in  respect  of  any  estranger. 

Procedendo,  4.     9  E.  3.  17.     32  E.  3.     Quare  Imp.  2  Dyer.     17  Eliz.  341.     Sect.  447. 
«  Vi.  devant,  Sect.  447.     (Ante  265.  b.  273.  a.) 


Sect.  492. 

ALSO,  as  to  releases  of  actions,  realls  and  personals,  it  is  thus.  Some 
actions  are  mixt  in  the  realty  and  in  the  personalty :  as  an  action 
of  wast  sued  against  tenant  for  life;  this  action  is  in  the  realtie  (cest 
action  est  |  en  le  realtie),  because  the  p>lace  wasted  shall  he  recovered  ; 
and  also  in  the  personaltie,  because  treble  damages  shall  he  recovered 
for  the  tvrongfull  waste  (pur  le  ||  tortious  wast)  done  by  the  tenant ;  and 
therefore  in  this  action  a  release  of  actions  reals  is  a  good  plea  in  bar, 
and  so  is  a  release  of  actions  personals. 

Glan.  li.  1.  ca.  1.  lUOTA,  there  be  two  kind  of  actions,  viz.  one  that  concern 

^'■**'*- ^''  ^-  the  pleas  of  the  crowne,  jjlacita  coronce,  or  jylacita  crimina- 

Brit.  fo.  71.  li^C')  another  that  concerne  common  pleas,  placita  comrminia,  seu 

Flet.  li.  1.  civilia.    Of  that  which  concerneth  pleas  of  the  crowne,  Littleton 

XT-'  ^^  ^}^'  speaketh  hereafter  in  this  chapter.     Of  actions  concerning  com- 

r.ruct^'ub.'siip'  ^0"!   pleas,  Littleton  speaketh  in  this   place.     And  these  are 

Flet.  li.  1.  ca.  1.  three  fold  (that  is  to  say),  reall,  personall,  and  mixt.  Flacitorum 

aliud 

*  &c.  added  L.  and  M.  and  Roh.  ||  tortious  wast — tort  et  wast,  L.  and 

"f  &c.  not  in  L.  and  M.  or  Roh.         31.  and  Roh. 
i  en  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  8.  Sect.  492.     Of  Releases.  [284.  b.  285.  a. 

allnd personale,  ciUud  rcale,  aliud  mixtum.     Or,  Ac-  (Plo.  484.) 

[Q85.~|   tionnm  quadavi  sunt  in  JS@°"  rem,  quadam  in  per- 
a.     J   soriam  et  quadam  mixtae.     And  generally,  actio  is  [)"]  Vide  Sect, 
defined,  T'l  Actio  nihil  aliud  rst  (/itclni  ins  proscquendi  444.    Bract. 
in  jnd  icio  quod  sihi  dcbctur.    Or,  Actio  n'cstauter  chose  que  loycdl  YXotnyi'-i  "^'i- 
demande  de  son  droit.  Mirror,  c.  2.  3  1. 

[k]  And  by  tbe  release  of  all  actions,  causes  of  actions  bo  re-  [/.•]  Lib.  8.  151. 
leased;  but  M'itbiu  a  submission  of  all  actions  to  arbitremcnt  Altham's  case. ^ 
causes  of  action  are  not  contained.  5^Mar  ''IT^*^' ^'' 

Vide  36  II.  6.  8.     Vide  42  E.  3.  22,  23.     (5  Rep.  8.\.  103.  77.  b.) 

"  Tenant  for  life."  And  so  it  is  if  it  be  brougbt  against 
tenant  for  ycares,  because  it  agreeth  witb  the  reason  of  Littleton 
here  rendered,  viz.  that  the  place  wasted  shall  be  recovei'ed,  and 
therefore  soundeth  in  the  realty.  (Cro.  Car.  171.) 

^^  Also  in  the  personaltie,  because  treble  dama;jcs  shall  he  reco- 
vered," which  doe  souud  in  the  personaltie.  Wherefore  Littleton 
concludeth,  that  in  an  action  mixt  a  release  of  all  actious  reals 
is  a  good  barre,  and  so  is  a  release  of  all  actions  personals. 

And  here  is  to  be  observed  a  diversity  betweene  the  act  of  the 
party,  and  an  act  in  law ;  for  a  man  by  his  owne  act  cannot  alter 
the  nature  of  his  action :  and  therefore  if  the  lessee  for  life  or 
lessee  for  yeares  doe  waste,  now  is  an  action  of  waste  given  to 
the  lessor,  wherein  he  shall  recover  two  things,  viz.  the  place 
wasted,  and  treble  damages :  in  this  case  if  the  lessor  release  all 
actions  realls,  he  shall  not  have  an  action  of  waste  in  the  per- 
sonalty only;  and  if  he  release  all  actions  personals,  he  shall 
not  have  an  action  of  waste  in  the  realty  only. 

[/]  And  so  it  is  if  the  lessee  doth  waste,  and  after  surrendreth  rn  jg  jj_  (^^  gg_ 
to  the  lessor  his  estate,  and  the  lessor  accept  thereof,  the  lessor  14  H.  6.  14. 
shall  not  have  an  action  of  waste.  V.  R2.AVast.99. 

But  by  act  in  law  the  nature  of  the  action  may  be  changed ;  as  ^„    '   ' 
if  a  man  make  a  lease  jjmj-  terme  d' aider  vie,  and  the  lessee  doth  Br.  AVaste. 
waste,  and  then  cesty  que  vie  dyeth,  an  action  of  waste  shall  lye  (5  Rep.  75.) 
for  damages  only  because  the  other  is  determined  by  act  in  law.  (^^i''  ^^^-^ 

And  againe,  hereupon  is  another  diversity  to  be  observed,  that 
in  case  when  an  action  is  well  begun,  and  part  of  the  action  de- 
terniiuoth  by  act  in  law,  and  yet  the  like  action  for  the  residue  is 
given,  there  the  writ  shall  nut  abate,  but  proceed.      But  where  n  h.  6.  43. 
by  the  determination  of  part  the  like  action  remaineth  not  for  the  9  E.  4.  50. 
residue,  there  the  action  well  commenced  shall  abate.     As  if  an  ^^  ^-  ^-  ^^• 
action  of  waste  be  brought  against  iQnwnt  pur  terme  d'auter  vie,  9  n.'e.'so.' 
and  hanging  the  writ  ccsfy  que  vie  dyeth,  the  writ  shall  not  abate,  (7  Rep.  77. 
but  the  plaintife  shall  recover  damages  only,  because  if  cestij  que  ?^:f"L   ,,  , 
vie  had  died  before  any  action  brought,  the  lessor  might  have  an  322.) 
action  of  waste  for  the  damages.     So  if  an  ejectione  firmai  be 
brought,  and  the  terme  incurreth  hanging  the  action,  yet  the 
action  shall  proceed  for  damages  only,  because  an  ejectione  doth 
lye  after  the  terme  for  damages  only.     But  if  tenant  |n/r  autcr 
vie  bring  an  assise,  and  cestij  que  vie  dyeth  hanging  the  writ, 
albeit  the  writ  were  well  coujuienced,  yet  the  writ  shall  abate, 
because  no  assise  can  be  maintainable  for  damages  only. 

So  if  an  action  of  waste  be  brought  by  baron  and  fern  in  re-  2  H.  4.  22. 
mainder,  in  especiall  taylc,  and  hanging  the  writ  the  wife  dieth  |^- ^-  „y 

(Ant.  53.  b.     Plo.  18.  b.^     .34  11.0.10.     9  E.  4.  39.     14  11.  7.  31.'    18  E.  3. 
Scire  facias,  10.     (Win.  Jones,  215.     Cro.  Car.  171.     5  Rep.  48.  6.) 

without 


285.  a.  285.  b.] 


Of  Releases.    L.  3.  C.  8.  Sect.  493. 


[m]  22  R.  2. 
Briefe,  8SS. 
18  E.  4.  1. 
(Doct.  Pla.  47.) 
(Ray.  ISO,  and 
176.  S.  C.) 
(1  Saun.  228. 
S  C 

I'Ve'nt.  12  &  13. 
(2  Roll.  Abr.  411 


[,{]  30  H.  6.  ubi 

supra. 

45  E.  3.  fol.  6. 

18  E.  3.  fol.  56. 

21  H.  6.  IS.  a. 

(Doc.  Pla.  47. 

301.) 

(W.  Jones,  215. 

contra.) 

[o]  Merton, 
cap.  1.  in  dower. 
Gloc.  cap.  1. 


without  issue,  the  writ  shall  abate,  because  every  kind  of  action 
of  w;isto  must  be  ad  exliceredationem. 

If  a  writ  of  annuity  be  brought,  and  the  annuity  determineth 
hanging  the  writ,  the  writ  faileth  for  ever,  because  no  like  ac- 
tion can  be  maintained  for  the  arrerages  only,  but  for  the  an- 
nuity and  arrerages. 

But  where  damages  only  are  to  be  recovered,  there  albeit  by 
act  in  law  the  like  action  lyeth  not  afterwards,  yet  the  action 
well  commenced  shall  proceed;  [m]  as  if  a  conspiracy  be  brought 
against  two,  and  one  of  them  dyeth  hanging  the  writ,  it  shall 
proceed. 

And  in  an  assise  of  novel  disscinn,  a  writ  of  annuity,  quare 

impedit,  and  other  mixt  actions  (1),  a  release  of  actions  real  is 

a  good  plea,  and  so  it  is  of  a  release  of  actions  personal. 

2  H.  4.  13.     9  H.  6.  57.     Mo.  133.  contra.)     30  H.  4.  Barre,  59. 
.     2  Co.  6S.  a.     Ant.  197.  b.) 

But  if  three  joyntenants  be  disseised,  and  they  arraignc  an 
assise,  and  one  of  them  release  to  the  disseisor  all  actions  perso- 
nals, this  shall  barre  him,  but  it  shall  not  barre  the  other  plain- 
tife;  for  having  regard  to  them  the  realty  shall  bee  preferred,  et 
omne  majufi  trahit  ad  se  minus  digiinm.  [?)]  And  in  a  writ  of 
ward  brought  by  two,  the  release  of  the  one  shall  not  grieve  the 
other,  but  shall  enure  to  his  benefit,  for  he  shall  recover  the 
whole  ward,  and  hold  his  companion  out. 

But  here  a  diversity  is  to  be  observed  betweene  reall 
actions,  wherein  damages  are  to  be  J6@^  recovered  at  rQ85.1 
the  common  law,  as  in  an  assise,  &c.  and  reall  actions  L  "^^  J 
where  damages  are  not  to  be  recovered  by  the  common 
law,  but  are  given  by  the  [o]  statute,  for  there  a  release  of  all 
actions  personals  is  no  barre,  as  in  the  writ  of  dower,  entrie  sur 
disseisin  in  Ic  per,  &c.  mord'anc,  aiel,  &c. 


(5  Rep.  97.) 


*  Sect.  493. 


A^I^  '^n  a  quare  impedit  a  release  of  actions  personals  is  a  good  plea, 
and  so  is  a  release  of  actions  reals,  per  Martin,  quod  fuit  concessum. 
Hill.  9  H.  6.  fol.  57. 

9  H.  6.  57.^  n^HIS  is  an  addition  to  Littleton,  which  although  it  be  law,  and 

"  J_    |,jjg  booke  truly  cited,  yet  I  passe  it  over.     But  yet  note  by 

the  way,  that  a  release  of  actions  personals  is  also  a  good  barre 
in  a  quare  impedit,  because  it  is  an  action  mist. 


*  This  section  is  not  in  L.  and  M.  or  Boh. 


Sect. 


(1)  5  Car.  B.  R.  Sir  John  BodvilVs  case.  Resolved  contra;  scilicet,  tJuit 
it  was  a  mere  personal  action,  and  not  mixt ;  et  idco,  annuifi/  in  Wales  hy  hill 
lies  well ;  where,  if  it  had  been  mixt,  the  action  ought  to  have  been  brouijht  btj 
original,  per  34  H.  8.  ca.  26.  upon  argument  bi/  the  court  on  error  brought. 
Cro.  170.     L.  Nott.  MSS.— [Note  246.] 


L.  3.  C.  8.  Sect.  494.     Of  Eeleases.  [285.  b. 


Sect.  494. 


/ 


iV  the  same  manner  it  is  in  an  assise  of  novel  disseisin,  for  tJiat  it  is 
mixt  in  the  realtie  and  in  the  j^ersonaltie.  But  if  such  an  assise  bee 
arraigned  against  the  disseisor  and  the  tenant,  the  disseisor  may  well 
plead  a  release  of  actions  personals  to  harre  the  assise,  but  not  a  release 
of  actions  reals,  for  none  shall  plead  a  release  of  actions  reals  in  an 
assise  but  the  tenant. 

"  nf^ JIB  disseisor  mat/  icell  plead,  &c." 

JVota,  every  man  shall  plead  such  pleas  as  are  proper  for  [f^^.^'^p'  ^'^ 
him,  and  apt  for  his  defence  to  be  pleaded,     [q]  As  a  disseisor  35^  37)' 
that  hath  nothing  in  the  land  may  pleade  a  release  of  actions  (Ant.  180.  b.) 
personals,  because  damages  are  to  be  recovered  against  him,  and  [.^^."|*'  \^^'\. 
therefore  for  his  defence  hee  may  plead  it;  but  a  release  of  isE.  3.  2.2.3 
actions  reals  he  cannot  plead  (1),  because  he  hath  no  estate  in  24.    31  E.  3. 
the  land,  and  none  shall  plead  a  release  of  actions  reals  in  an  ^^}^^°  ^P^P-  •^^•^' 
assise,  but  the  tenant  of  the  land.     Et  sic  de  cceteris.     But  the  g  ^'  3'  q 
tenant  in  an  assise  shall  plead  a  release  of  actions  personals  to  39  E.  3.30. 
the  disseisor,  for  ftiat  plea  proveth  that  the  plaintife  hath  no  22  E.  3.  2. 
cause  of  action  against  him.  3"-^  j  Ou'are 

imp.  44.     38  E.  3.  30,  31.     5  E.  3.  2G.     21  E.  3.  16,  17.     5  H.  7.  34.     8  11.  5.  14. 

22  H.  6.  28,  29.     1 11.  7.  34.    27  E.  3.  81.    32  H.  6.  15.  b.    17  Ass.  25.    2  II.  7.  14. 

13H.  8. 13,  14.     44  E.  3.  12.     46  E.  3.  13.     16E.  4.  11.     24  E.  3.  .34.     4E.  4. 18. 

7  II.  4.  34.     2  R.  2.  Encumbent,  4.     33  E.  3.  Quare  imp.  194.     (8  Rep.  151.  b.) 

(Sect.  278.)     13  H.  4.  2.  a.     (7  Rep.  26.  a.) 

If  the  disseisee  release  to  the  disseisor  all  actions  reals,  and  (Sect.  471.) 
the  disseisor  makcth  a  feoffement  in  fee,  and  an  assise  is  brought 
against  them,  the  feoffee  shall  not  plead  the  release  to  the  dis- 
seisor, for  that  he  is  not  privie  to  the  release,  for  a  release  of  (lo  Rep.  51.  b.) 
actious  shall  only  extend  to  privies. 

If  a  disseisor  make  a  lease  for  life,  the  remainder  in  fee,  and 
the  disseisee  release  all  actions  to  the  tenant  for  life,  after  the 
death  of  tenant  for  life,  he  in  the  remainder  shall  not  plead  the 
said  release. 

If  the  disseisee  release  all  actions  to  the  disseisor,  and  die, 
this  doth  barre  him  but  for  his  life,  for  after  his  decease  his 
heire  shall  have  an  action,  [/-]  as  some  have  said.     And  hereby  [•,.]  19  n.  g, 
may  appeare  a  manifest  diversity  between  a  release  of  a  right,  23.  a. 
and  a  release  of  actions.  (^  ^'-'P-  ^^^"^ 

Sect.  ' 


(1)  Jloh.  163.  accord,  whether  the  action  be  brought  against  the  disseisor 
onig,  or  against  him  and  the  tenant;  hut  if  the  same  pcrsun  be  disseisor  and 
tenant,  then  he  mag  jAcad  a  release  of  actions  real.  L.  Nott.  MSS. — [Note 
247.] 


286.  a.  286.  b.J    Of  Keleases.    L.  3.  C.  8.  Sect.  495,  496. 


(8  Rep.  140.)  m-  Sect.  495.  [^^^'1 


A  LSO,  in  such  actions  reals  whicJi  ought  to  be  sued  against  the  tcyiant 
of  the  freehold,  if  the  tenant  hath  a  release  of  actions  reals  from  the 
demandant  made  unto  him  before  the  writ  purchased,  and  he  plead  this, 
it  is  a  good  plea  for  the  demandant  to  say,  that  hce  lohich  plead  the  plea 
had.  nothing  in  the  freehold  at  the  time  of  the  release  made,  for  then  he 
had  no  cause  to  have  an  action  reall  against  him. 

(S  Rep.  151.  b.)  n^'HIS  is  evident  enough  by  that  which  hath  beene  said,  that 
-»-  a  release  of  all  actions  reals  must  bee  made  to  him  that  is 
tenant  of  the  land,  because  a  reall  action  must  be  brought 
against  such  a  tenant. 


Sect.  496. 

ALSO,  in  such  case  where  a  man  may  enter  into  lands  or  tenemeyits, 
and  also  may  have  an  action  reall  for  this,  which  is  given  by  the 
law  against  the  tenant  *  ;  if  in  this  case  the  demandant  releaseth  to  the 
tenant  cdl  manner  of  actions  reals,  yet  this  shall  not  take  the  demand- 
ant from  his  entrie,  but  the  demandant  may  well  enter  iiotiuithstanding 
such  release,  for  that  nothing  is  released  but  the  action,  ^c. 

(8  Rep.  152.)       *'  JIJAY enter."     Here  it  appeareth,  that  where  a  man  may 
enter,  a  release  of  all  actions  doth  not  barre  him  of  his 
right,  because  he  hath  another  remedy,  viz.  to  enter.  And  this  is 
[«]  IS  E.  3.  34.     agreeable  with  the  authoritie  of  our  [s]  bookes.     But  where  his 
19  E.  3.  entry  is  not  lawful,  there  a  release  of  all  actions  is  by  conse- 

Title,  35.  quence  a  barre  of  his  right,  because  he  hath  released  the  mean 

whereby  he  might  recover  his  right.  As  if  the  disseisee  release 
all  actions  to  the  heire  of  the  disseisor,  which  is  in  by  discent, 
he  hath  no  remedy  to  recover  the  land ;  but  yet  the  disseisee 
hath  a  right,  for  that  hee  hath  released  his  action,  and  not  his 
right,  as  shall  be  said  hereafter  in  the  chapter  of  Remitter  in 
his  proper  place.  If  the  heire  of  the  disseisor  make  a  feoffment 
in  fee  to  two,  and  the  disseisee  releaseth  to  one  of  the  feoffees 
all  actions,  and  he  dieth,  the  survivour  shall  not  plead  this 
release  for  the  causes  abovesaid.  And  hereby  also  again  ap- 
peareth another  diversity  between  a  release  of  a  right,  and  a 
release  of  actions. 
rs  Re    150  )  '^^"  ^^  ^^  ^^  ^^  observed,  when  a  man  hath  severall  rSSG."! 

19  Ass."  3.  remedies  for  one  and  the  selfe  same  thing,  be  it  reall,  L     '^^     J 

30  E.  3. 19.  6.      personall,  or  mixt,  albeit  he  releaseth   one  of  his  re- 
21  H  7  ^3^      medies,  he  may  use  the  other. 

Sect. 


7  H.  6.  6. 


*  &c.  added  in  L.  and  M.  and  Roh. 


L.  3.  C.  8.  Sect.  497,498,499.     Of  Releases.         [286.  b. 


Sect.    497.  (9  Rep.  52.) 

IN  the  same  manner  is  it  of  things  jjersonall ;  as  if  a  man  hy  wrong 
take  away  my  goods,  if  I  release  to  him  all  actions  personals,  yet  I 
may  by  the  law  take  my  goods  out  of  his  possession. 

This  of  it  selfe  is  evident. 


Sect.  498. 

A  LSO,  if  I  have  *  any  cause  to  have  a  writ  of  detinue  of  my  goods 
against  another,  albeit  that  1  release  to  hipi  all  actions  personals,  yet 
I  may  f  by  the  laiv  take  my  goods  out  of  his  possession,  because  no  right 
of  the  goods  is  released  to  him,  but  only  the  action,  ^c. 

"   A    WRIT  of  detinue.     Breve  de  detentione  dicicitur  a  deti-  (Coke's  Ent. 

,      nendo,  because  detinet  is   tbe  principall  word  in  the  writ,  V^l'^l    ng  l 
And  it  lyeth  where  any  man  comes  to  goods  eyther  by  delivery,  \  cro.Tsi.) 
or  by  finding.     In  this  writ  the  plaiutife  shall  recover  the  thing  Glanvil.  lib.  10. 
detained,  and  therefore  it  must  bee  so  certaine  as  it  may  be  ^^^'-^^^-^  ^.^g  ^ . 
knowne,  and  for  that  cause  it  lyeth  not  for  money  out  of  a  bagge,  ji  Ro'iLAbr." 
or  chest;  and  so  of  corne  out  of  a  sacke,and  the  like,  these  can-  eOG.) 
not  be  knowne  from  other.     [/]  A  man  shall  have  an  action  of  (^  Roll.  Abr. 
detinue  of  charters  which  concern  the  inheritance  of  his  land  if  ^^^l^  pjj^_  j24, 
hee  know  the  certainty  of  them,  and  what  land  they  concerne,  125.) 
or  if  they  be  in  bagge  sealed,  or  chest  locked,  though  he  knoweth  41  E.  3.  2. 
not  the  certainty  of  them:  and  it  is  good  policie  (if  possibly  he  5^^^^°  '      '"•    ' 
can)  in  that  case  to  declare  of  one  charter  in  especiall,  [?/]  and  j-^j  4^  ^  3^  2. 
then  the  defendant  shall  not  wage  his  law.     [x\  An  action   of  8  H.  6.  18.  28. 
detinue  for  charters  doth  sound  in  the  realty,  for  therein  sum-  f'-^^W^'  ^'^^ 
muns  and  severance  lyeth ;  and  in  detinue   of  goods  a  capias  oq  jj  g  ^' 
doth  lye  ;  but  for  charters  in  speciall  a  capias  lyeth  not,  and  yet  9  H.  6. 18. 
a  release  of  actions  personals  in  a  writ  of  detinue  of  charters  is  (9  l^ep.  18. 
a  good  barre.  F.  n.  b.  138.) 

(lORep.  51.  b.)  [«]10H.  6.  20.     21  H.  6.  1.     14  H.  6.  4.     14  H.  4.  2.3,  24.  27. 

(Post.  295.)         [.!■]  20  H.  6.  45.      19  E.  3.     Severance,  14.      31  E.  3.  ib.  32.     42  E. 
3.  13.     40  E.  3.  25.     (10  Rep.  135.)     (Doc.  Pla.  125.)  • 


Sect.  499. 

A  LSO,  if  a  man  be  disseised,  and  the  disseisor,  maketh  a  feoffment  to 

divers  persons  to  his  use,  Xand  the  disseisor  continually  taketh  the 

profits,  ^'C.  and  the  disseisee  release  to  him  all  actions  reals,  and  after  hee 

sueth 

*  ajiy  not  in  L.  and  M.  or  Roh.  J  dr.  added  in  L.  and  M.  and 

f  hy  the  law  not  in  L.  and  M.  or  Roh. 

Roh. 


286.  b.  287.  a.]       Of  Releases.       L.  3.  C.  8.  Sect.  500. 

sueth  against  him  a  writ  of  entrie  in  nature  of  an  assise  hy  reason  of 
the  statute,  because  hee  taketh  the  profits,  (^c.  Quaere,  how  the  disseisor 
shall  hee  ayded  hy  the  sayd  release  ;  for  if  hee  will  jjlead  the  release 
geney-ally,  tJten  the  demandant  may  say,  that  hee  had  nothing  in  the 
freehold  at  the  time  of  the  release  made;  and  if  hee  plead  the  release 
specially,  then  he  must  acknowledge  a  disseisin  (donques  il  covient  *con- 
ustre  un  disseisin),  and  then  may  the  demandant  enter  into  the  land,  ^c. 
by  his  acknowledgment  of  the  desseisin,  ^-c.  but  peradventure  by  speciall 
'pleading  he  may  barre  him  of  the  action  f  tohich  he  sueth,  ^"c.  though 
the  demandant  may  enter. 

"  J^Y reason  of  the  statute."     That  is  to  say,  the  statute  of  4 
-^    E.  4.  ca.  7.  and  11  H.  6.  ca.  4. 

(5  Rep.  77.)  "  For  if  hee  u-iU  plead  the  release  generally."     Here  it  ap- 

.3  H.  7.  2.  peareth,  that  when  the  statute  had  given  the  action 

^  reall  OO"  against  the  pernor  of  the  profits,  it  enableth   rQ87.n 

him  to  take  and  pleade  a  releas  of  all  actions  reals,  and   [_     ^-      J 
yet  he  hath  neither  /«s  in  re,  nor  Jus  ad.  rem,  which 
point  is  worthy  of  observation  for  manifestation  of  the  equity  of 
the  law. 

(8  Rep.  150.)  (I  Then  he  must  acknowledge  a  disseisin,  &c."     In  a  writ  of 

(Doc  Pla  343  )  ^o^'^^"  ^^^'^  tenant  pleaded  that  before  the  writ  purchased  A.  was 
seised  of  the  land,  &c.  untill  by  the  tenant  hiraselfe  hee  was  dis- 
seised, and  that  hanging  the  writ  A.  recovered  against  hiui,  &c. 
judgment  of  the  writ,  and  adjudged  a  good  plea,  in  which  plea 
the  tenant  confessed  a  disseisin  in  himselfe. 

"  Then  may  the  demandant  enter."  So  might  hee  have  done  in 

this  case  that  Littleton  putteth,  albeit  the   tenant  confessed  no 

disseisin.     And  therefore  it  is  no  prejudice  to  the  tenant  to  con- 

fesse  a  disseisin  in   himselfe,  &c.  and  then,  as  Littleton  here 

holdeth,  the  action  shall  be  barred. 

28  H.  8.  But  the  reader  is  to   observe,  that  now  by  the  statute  of  27 

Dier,  32.  jj  g   gf,„   jQ   ■^yhich  executes  the  possession  to  the  use,  all  the 

27  H.  8.  c.  10.        i  X   i.  •     i.       .  £  .1  cl     \        1     ^ 

statutes  against  cesty  que  use,  or  pernor  or  the  pronts,  have  lost 

their  force. 


Sect.  500. 


A  LSO,  if  a  man  sue  an  appeale  of  felony  of  the  death  of  his  ancestor 
against  another,  though  the  appellant  release  to  the  defendant  all 
manner  of  actions  reall  and personall,  this  shall  not  aide  the  defendant, 
for  that  this  appeale  is  not  an  action  reall,  in  as  much  as  the  appellant 
shall  not  recover  any  realtie  in  such  appeale :  neither  is  such  ajjpeale  an 
action  personall,  in  as  much  as  the  wrong  was  done  to  his  ancestor,  and 
not  to  him.  But  if  he  release  to  the  defendant  all  mangier  of  actions, 
then  it  shall  bo  a  good  barre  in  an  appeale.  And  so  a  man  may  see  that 
a  release  of  all  manner  of  actions  is  better  than  a  release  of  actions 
reals  and  personals,  Src. 

OUR 

*  dc  added  in  L.  and  31.  and  f  ivhich  he  sueth,  d-c.  not  in  L.  and 

Roh.  M.  or  Hoh. 


L.  3.  C.  8.  Sect.  500.      Of  Releases.       [287.  a.  287.  b. 

OUR  author  having  spoken  of  common  pleas,  now  trcateth  of 
ceftaine  pleas  criminall,  or  pleas  of  the  crowne,  whereof  it 
is  said,  [«"]  Item,  criminaUuvi  alia  majora,  alia  minora,  alia   [a]  Bract. lib.  3. 
maxima,  secundum  criminum  quantitatem ;  suntenim  crimina  f"-  l"!-  b- 
majora  et  dicuntur  capitalia  eo  quod  tiltimum  inducunt  siippli- 
cium,  &c.     Minora  vera,  quae  fustigationem  inducunt, 

[Q87.1   vel pcenam  jiiUoralem,  vel  (umboralem,  vel  0^  carce- 
b.      J   ris  inclusionem,  &c. 

\li\    Criminalium  quaedam   scntentialifcr  mortem  [h]  Flet.  lib.  1, 
vuhicunt,  qnsedam  vera  minime.      [c]  De  peche  est  hriefe  divi-  <="?•  ^.^-  (^) 
sion,  carest  mortalou  venial  solonque  cm  que  appiert  es paines.   y]^  &ca\    ' 
And  that  crime  is  called  mortall  or  corporall :  mortall,  because  clcs  paines  en 
it  deserveth  death  ;  and  such  crimes  are  called  veniall,  as  may  tHvers  manners, 
be  redeemed  or  satisfied  by  some  other  punishment  than  by  death. 

"  Ap>peale  offelonie."    [x]  ApipeUum  signifieth  accusatio,  an  W  Mir.  ca.  2. 
accusation,  and  therefore   to  appeale  a  man  is  as  much  as  to  |  '^^^!?'^*"  ^'"  ^' 
accuse  him :  and  in  [,y]  ancient  bookes  he  that  doth  appeale  is  Brit.  ca.  22  23, 
called  accusator,  and  is  peculiyrly  in  legall  signification  applyed  Flet.  li.  1. 
to  appeales  of  three   sorts.     First,  of  wrong  to  his  ancestor,  ^a-  31,  32, 33. 
Avhose  heire  male  he  is,  and  that  is  onely  of  death,  whereof  our  [3  {^[  '|o\  ) 
author  here  speaketh.     The  second  is  of  wrong  to  the  husband,   [?/]  Glanv.lib.  7. 
and  is  by  the  wife  only  of  the  death  of  her  husband  to  be  prose-  '^•iP-  ^-  ^^^^'^- 14. 
cuted.  The  third  is  of  wrongs  done  to  the  appellants  themselves,  *"*'   '  ^  "' 
as  robbery,  rape,  and  mayhem.     The  word  ap)pellum  is  derived 
of  appeller,  to  call,  because  apypcUans  vocat  reum  in  judicium,  he 
called  the  defendant  to  judgement,  and  the  plaintifc  is  called 
the  appellant. 

"Appeale,"  Appellatio,  is  a  removing  of  a  cause  in  any  eccle-  24 II.  8.  ca.  12. 
siastical  court  to  a  superior ;  but  of  this  there  needeth  no  speech  ^  ^^-  ^^-  1- 
in  this  place. 

"  Of  the  death."  Appeale  of  death  is  of  two  sorts,  of  murder  (4  Rep.  40.  43, 
and  of  homicide.  Murder  is  when  one  is  slaine  with  a  man's  3  Inst.  47.) 
will,  and  with  malice  prepensed  or  forethought.  Homicide,  as 
it  is  legally  taken,  is  when  one  is  slaine  with  man's  will,  but 
not  with  malice  prepensed.  Chance-medly,  or  per  infortunium, 
is  when  one  is  sliiine  casually,  and  by  misadventure,  without  the 
will  of  him  that  doth  the  act,  whereupon  death  insueth ;  but  of 
this  no  appeale  doth  lye.  Murder  commeth  of  the  Saxon  word 
Tnordreu. 

Were  is  an  old  Sason  word  sometime  written  wera,  and  signi-  Lamb.  Expos, 
fieth  the  price  of  the  life  of  a  man,  estimatio  capitis,  that  is,  so  verb.  Estimatio. 
much  as  one  paid  fur  the  killing  of  a  man  ;  by  which  it  appeareth,  ^''^'-  ^^^-  ^■ 
that  such  government  was  in  those  dayes,  as  slaughters  of  men  ^.'344.    °^^  ' 
were  most    rarely  committed,  as  master  Lamhard  collecteth. 
And  you  shall  not  read  of  any  insurrection  or  rebellion  before 
the  Conquest,  when  the  view  of  frankpledge  and  other  ancient 
lawes  of  this  realme  were  in  their  right  use. 

"  But  if  he  release  to  the  defendant  all  manner  of  actions,  d^c."  (4  Rep.  45.  47.) 
And  the  reason  is,  for  that  then  all  actions,  as  well  criminall  (^°<'-  P^*'-  ^^O 
as  reall,  personall  and  mixt,  be  released.     But  a  relea.se  of  all  " 
actions  reall  and  personall  cannot  barre   an   appeale  of  death, 
because  that  release  extendeth  to  common  or  civil  actions,  and 

not 

(A)    The  words  quoted  in  the  text  under  [6]  are  in  Fleta,  lib.  1.  cap,  16. 


287.  b.  288.  a.]  Of  Releases.  L.  3.  C.  8.  Sect.  501,  502. 

not  to  actions  criminall :  but  releases  of  all  actions  criminall  or 
mortall,  or  concerning  pleas  of  the  crowne,  are  good  barres  in 
an  appeale  of  death,  and  so  the  (c&c.)  in  the  end  of  the  Section  is 
well  explained. 


IG»  Sect.  501.  r^S8. 


n 


ALSO,  in  an  apjMaU  of  robberie,  if  the  defendant  will  jyleade  a  release 
of  the  appellant  of  all  actions  personals,  this  seemeth  no  plea  ;  for 
an  action  of  appeal  where  the  appellee  shall  have  judgment  of  death,  ^c. 
is  higher  than  an  action  personall  is,  and  is  not  properly  called  an  actioii 
personall  ;  and  there  if  the  defendayit  will  plead  a  release  of  the  appellant 
to  barre  him  of  the  aj)peale,  in  this  case  he  must  have  a  release  of  all 
manner  of  appeales  (en  eest  case  il  covient  d'aver  un  release  de  touts 
manners  *  d'appeals),  or  all  manner  of  actions,  as  it  seemeth,  ^c. 

22  Ass.  39.  "  L>OBBERIE."     ^oioWa,  properly  is  when  there  is  a  felo- 

nious taking  away  of  a  man's  goods  from  his  person  :  and 

it  it  is  called  robbery,  because  the  goods  are  taken  as  it  were  de 
W.  1.  cap.  20.      la  robe,  from  the  robe,  that  is  from  the  person;  but  sometimes  it 

is  taken  in  a  larger  sense. 

(3  Inst.  68.  "  Judgment  of  death,  &c."     By  this  {&c.)  is  implyed  appeales 

Dy.  39.  a.  of  rape,  of  arson  or  burning,  of  felony  or  larceny,  tor  therein  also 

ro.    ar.      .)     -^  j^^gJ^g^t  Qf  (jgath,  and  are  within  our  author's  reason. 

Vid.  Sect.  508.  "  ^s  it  seemeth,  <&-c."     It  is  to  be  understood,  that,  first,  a 

release  of  all  actions  criminall,  mortall,  or  concerning  pleas  of 
the  crowne;  secondly,  a  release  of  all  actions  generally ;  thirdly, 

(Post.  291.  b.)  a  release  of  all  appeales ;  and  lastly,  a  release  of  all  demands,  arc 
good  barres  in  all  these  kinds  of  appeales. 


Sect.  502. 

"OUT  in  appeale  of  mayhem  a  release  of  all  manner  of  actions  personals 
is  a  good  plea  in  barre,  for  that  in  such  an  action  hee  shall  recover 
nothing  but  damages. 

Mir.  ca.  1.  g  9.  ''  l\/JAYHE3f,"  mahemium,  memlri  mutilatio,  or  ohtruncatio, 
(ilan.  li.  14.  commeth  of  the  French  word  mehaigne,  and  signifieth  a 

vh  \  T^'^^t**2  corporall  hurt,  whereby  hee  loseth  a  member,  by  reason  whereof 
ca.'24.  Brit,  fo.'  ^^^  i^  lesse  able  to  fight;  as  by  putting  out  his  eye,  beating  out 
48.  ca.  25.  Flet.  his  fore-teeth,  breaking  his  skull,  striking  ofl"  his  arme,  hand, 
lib.  1.  ca.  38.  qj.  finger,  cutting  off  his  legge  or  foot,  or  whereby  he  loseth  tlie 
fo.  38.  b.  "^^  '^^  ^'^y  01  uis  said  members. 

(3  Inst.  lis.     4  Rep.  43.  45.     Ant.  120.)     28  E.  3.  91.     8  II.  4.  21. 

''  Damages, 
*  d'actions  added  in  L.  and  M. 


L.  3.  C.  8.  Sect.  503.       Of  Keleases.         [288.  a.  288.  b. 

"  Damages,  Sc"     Vide  Sect.  194. 

"  A  release  of  all  manner  of  actions  personals  is  a  good  plea,  21  H.  5.  16. 
(kc."     And  the  reason  is  that  for  every  action  wherein  damages  ^  ^  '    -,\"* 
only  are  recovered  by  the  pkintife,  is  in  law  taken  for  an  action 
personall. 


[^T']  m^  Sect.  503. 


ALSO,  if  a  man  hee  outlawed  in  an  action  personall  hy  processe  upon 
the  originall,  and  hringeth  a  writ  of  errour,  if  he  at  whose  suit  he 
was  outlawed  will  pie ade  against  him,  a  release  of  all  manner  of  actions 
personals,  this  seemeth  no  plea  ;  for  hy  the  said  action  he  shall  recover 
nothing  in  the  personaltie,  but  only  to  reverse  the  outlawrie:  but  a  release 
of  the  writ  of  errour  is  a  good  plea. 

''A    WRIT  of  errour."     This  writ  lyeth  when  a  man  is  grieved  V.  1!.  ll.fo..39. 

"^    by  an  error  in  the  foundation,  proceeding,  iudgment,  or  41,  m  Metcalfe's 

.•^  ,,  ..         1117  7        o'Jfa,'  ease  upon  what 

execution,  and  thereupon  it  is  called  breve  de  errore  corrigenda,  judgements  and 

But  without  a  judgment,  or  an  award  in  nature  of  a  judgment,  no  awards  a  writ  of 

writ  of  error  doth  lie ;  for  the  words  of  the  writ  be,  si  Judicium  red-  /p"'"^p  ^'Vi^x' 

ditum  sit :  and  that  judgement  must  regularly  be  given  by  judges  (3  Rep.  1". 

of  record,  and  in  a  court  of  record,  and  not  by  any  other  inferiour  Cro.  Jac.  S.) 

iudges  in  base  courts,  for  thereupon  a  writ  of  false  iudgment  doth  J^'-  ^-  ^^-  m* 
.  1.  -      X  oxlev  s  cT'e 

lye.     In  this  case  of  outlawry  upon  processe,  the  judgement  is  Li.  6.  fo.  11  12. 

given  (in  the  county  court,  which  is  no  court  of  record)  by  the  Jentleman's 

coroners,  Csavins:  in  London  judgement  is  given  by  the  recorder,  '^^^^^  „ 

•  .     ^  ^  I       (Cyo   Car  63 

and  not  by  the  maior,  who  is  coroner  by  the  custome  of  the  )^    '  gg_ ' 
city);  for  after  the  defendant  is  quintn  exactus,  and  maketh  de-  1  Roll.  750, 
fault,  the  judgment  is,  ideo  utlagatur  'per  judicium  coronatorum ;  V^  -^^p.  38. 
and  in  London,  jjer  judicium  recordatoris  :  so  as  by  the  outlawry  ^'j^^  \^'^  j^ ' 
the  plaintife  recovers  nothing  but  the  king  taketh  the  whole  be-  s  Rep.  141.) 
nefit  thereof;  for  the  law  did  intend,  that  the  defendant  would  i^  Eliz. 
rather  appeare  and  answer  the  plaintife,  &c.  than  to  forfeit  all  his  (An['i28'b  ) 
goods  and  chattels,  debts  and  duties  to  the  king,  by  his  default  Lib.  9.  fof.  119. 
and  contumacie.     But  Litdeton  is  to  be  intended,  that  the  sherife  §  Zanchar's 
doe  returne  the  exigent  whereby  the  outlawry  appeares  of  record,  ?5*^'     -^-^^  ^ 
or  that  the  outlawry  be  removed  by  certiorari,  for  before  that  (Ant.  114.) 
time  that  the  outlawry  appeare  of  record,  the  defendant  doth  28  Ass.  49. 
not  forfeit  his  goods,  nor  the  plaintife  can  be  disabled,  nor  any  gg  ^"  g*  ^^^'  ^' 
writ  of  error  doth  lye  in  that  case.     And  this  is  the  cause  that  Mich.  4'  &  5.  El. 
the  goods  of  outlawcs   cannot  be  claimed  by  prescription,  be-  Dyer,  fo.  222. 
cause  they  are   not  forfeited  untill  the  outlawry  appeare  of  re-  X' Rf^^^o-^^^' 
cord.      Vide  Sect.  197,  where  it  appeareth  by  Littleton,  that  the  p.  >sf  £_  20.  b. 
plaintife  cannot  be  disabled  by  outlawry,  unlessc  it  appeareth  of  22.  b.) 
record. 

"For  by  (lie  said  action  lice  shall  recover  nothing  in  the  per- 
sonaltie." Hereupon  is  to  be  observed  a  diversity,  when  by  the 
writ  of  error  the  plaintife  shall  recover,  or  bo  restored  to  any 
personall  thing,  as  debt,  damage,  or  the  like ;  for  then  by  the  rea- 
son that  Littleton  hero  yecldeth,  the  release  of  all  actions  per-  1  H-  4.  C. 
sonals  is  a  good  plea,  for  that  the  plaintife  is  to  recover,  or  to  be 

restored 


288.  b.  289.  a.]      Of  Eeleases.        L.  3.  C.  8.  Sect.  503. 

rostorcd  to  something  in  the  personalty.     And  so  likewise  when 
land  is  to  be  recovered  or  to  be  restored  in  a  writ  of  error,  a 
(I  H.  4.  6.  release  of  all  actions  reals  is  a  good  barre.    But  where  by  a  writ 

s  H^^'  '^''^■.,''^^'^'  of  error  the  plaintife  shall  not  bee  restored  to  any  personall  or 
32  II.  s.  '3(1'       reall  thing,  then  a  release  of  all  actions  reall  or  personall  is  no 
IS  Eliz.  14.^        barre ;  and  therefore  Littleton  here  putteth  his  case  with  great 
Cro.  Car.  272.      caution.     If  a  man  (saitTi  he)  by  processe  upon  the  originall  be 
(5  Rep.  41,  42.)    outlawed,  there  in  deed  he  shall  be  restored  to  nothing  in  the 
personalty  against  the  plaintife.     But  where  by  the  outlawry  he 
forfeited  all   his  goods   and  chattels  to  the  king,  he  shall  be  re- 
stored to  them  ;  also  thereby  he  shall  be  restored  to  the  law,  and 
to  be  of  ability  to  sue,  &c.     But  if  the  plaintife,  in  a  personall 
action,  recover  any  debt,  &c.,  or  damages,  and  (A)  bee  outlawed 
after  judgment,  there  in  a  writ  of  error  brought  by  the  defendant 
»  upon  the  principall  judgment,  a  release  of  all  actions  personals 

is  a  good  plea.    And  so  it  is  where  a  judgment  is  given  in  a  reall 
action,  a  release  of  all  actions  reals  is  a  good  barre  in  a  writ  of 
error  brought  thereupon. 
9H.  e.  47.  OO' If  the  tenant  in  a  reall  action  release  to  the  de-  [289.1 

mandant  after  recovery  his  right  in  the  land,  he  shall   L     ^-     J 
not  have  a  writ  of  error,  for  that  he  cannot  be  restored 
to  the  land. 

And  so  it  is  if  debt,  &c.  or  dammages  be  recovered  in  a  per- 
sonall action  by  false  verdict,  and  the  defendant  bringeth  a  writ 
[a]  26  H.  8.  3.  b.  of  attaint,  a  [a]  release  of  all  actions  personal  is  a  good  barre  of 
13  E.  4. 1,  2.       ^jjg  attaint ;  for  thereby  the  plaintife  is  to  be  restored  to  the 
debt,  &c.  or  damages  which  he  lost :  the  like  law  is  if  a  judge- 
ment be  given  upon  a  false  verdict  in  a  reall  action,  a  release  of 

34  H.  6.  31.         all  actions  reall  is  a  good  barre  in  an  attaint.    For  both  the  writ 

35  H.  6. 19.         Qf  error  and  the  writ  of  attaint  doe  insue  the  nature  of  the  for- 

29  Ass.  35.  , .  o 

47  E.  3.  6.  ^6r  action,  cvc. 

24  E.  3.  37.  And  so  it  is  if  a  writ  of  audita  querela  be  brought  by  the  de- 

(5  Rep.  86.)  fendant  in  the  former  action  to  discharge  himselfe  of  an  execu- 
tion, a  release  of  all  actions  personall  is  a  good  barre,  because 
he  is  to  discharge  himselfe  of  a  personal  esecution. 

(6  Rep.  25.)  <'  But  a  release  of  the  icrit  of  errour  is  a  good  plea,  &c."   So  as 

in  this  speciall  case  here  put  by  Littleton,  wherein  the  plaintife  is 
to  recover  or  to  be  restored  to  nothing  against  the  party ;  yet  for 
that  the  plaintife  in  the  former  action  is  privy  to  the  record, 
a  release  of  a  writ  of  error  to  him  is  sufficient  to  barre  the  plain- 
tife in  the  writ  of  error  of  the  suit,  and  vexation  by  the  writ  of 
error.  And  so  note  that  an  action  real  or  personall  doth  imply 
a  recovery  of  something  in  the  realty  or  personalty,  or  a  restitu- 
tion to  the  same,  but  a  writ  (1)  implyeth  neither  of  them,  which 
is  worthy  of  observation. 

Sect. 

(A)  It  seems,  that  the  text  should  he  read  as  if  the  words,  the  defendant,  had  been  inserted 
in  this  place.     See  Mr.  Ritso's  Intr.  p.  120. 


(1)  That  is  a  writ  of  error. 


L.  3.  C.  8.  Sect.  504.      Of  Keleases.       [289.  a.  289.  b. 

Sect.  504. 

A  LSO,  if  a  man  recover  debt  or  damages,  and  he  releaseth  to  the  de- 
fendant all  manner  of  actions,  yet  hee  may  lawfully  sue  execution 
hy  capias  acl  satisfaciendum,  or  hy  elegit,  or  fieri  facias :  for  execution 
upon  such  a  ivrit  cannot  bee  said  an  action. 

HERE  appeareth  a  diversity  betwccne  an  action  and  an  exe-  Vide  Sect.  233. 
cation.     For  regularly  an  action  is  said  in  its  proper  sense  (^  Rep.  88,  89. 
to  continue  until  judgement  bee   given,  and  after  judgement  g  j.^^"  ^' '  ^'' 
then  doth  processe  of  execution  begin;  and  therefore  a  release  4  E.  3. 
of  all  actions  regularly  is  [/^]  no  barre  of  execution,  for  the  exe-  Attorney,  18. 
cution  doth  begiune  when  the  action  doth  end.     And  therefore  ^^  jj'  g"  ^^' 
the  foundation  of  the  first  is  an  origiuall  writ,  and  doth  deter-  [b]  13  h.  4* 
mine  by  the  judgement;  and  writs  of  execution  are  called  ju-  Release,o3. 
diciall,  because  they  are  grounded  upon  the  judgement.  3^^  jj'  g-  ^' 

Execution,  7. 

"  By  capias  ad  satisfaciendum."     This  is  a  judiciall  writ  for 
the  taking  of  the  body  in  execution  untill  hee  hath  made  satis- 
faction;  where  a  capias  ad  satisfaciendum  lyetli  at  the  common  Sir  William 
law;  and  where  it  is  given  by  statute  you  may  reade  at  large  in  j^u "^o*^ f^'^ j j"^ j2 
my  Reports.  .    .     .     ,     . 

I  have  read  two  ancient  records  touching  the  taking  of  the 

body  in  execution,  whereof,  to  my  remembrance,  I  never  read 

any  touch  in  our  bookes,  yet  will  I  recite  them,  and  leave  them 

to  the  judicious  reader.      William  de  Walton  brought  an  action  Pasch.  14  E.  3. 

of  trespasse  of  breaking  his  close  against  Jb/tn  Mart  171,  and  upon  ^'^^-  100.  coram 

not  guilty  pleaded,  hee  was  found  guilty  and  damages  assessed  :  gu^rey. 

whereupon  judgement  was  given  that  the  plaintife  should  reco-  (Cro.  Jac.  356.) 

ver  his  damages,  et  quod  j^^'C'dlctus  Johannes  capiatur.     And 

the  record  saith,  Quod  prsed ictus  Johannes  venit  coram  domino 

rege  et  reddidit  se  prisoncc,  et  quia  constat  ctirici'  jjer  insjjectionem 

corporis  ijisius  Johannis,  quod  idem  Johannes  est   talis  aetatis 

quod panam  imprisonamenti  suhire  non  j)Otest,  ideo  dictum  est 

ei,  quod  eat  inde  sine  die.    The  other  record  is.  That  Ellen  Allot  Mich.  41  E.  3. 

brought  an  appeale  of  robbery  against  John  Boskiselcke  clerk,  R°l.'/norn'uir 

Richard  Charta  and  others,  who  pleaded  not  guilty,  and  were  \-a  Thesaur. 

not  found  guilty:  whereupon  judgement  was  given  that  they 

should  goe  quite,  et  prccdicta  Elena  pro  falso  appello  sua  com- 

mittatur  prison(e,&c.  (for  [6]  by  the  statute  she  ought  to  be  im-  [J]  W.  2.  cap.  12. 

nrisoned  in  that  case  for  a  yeare.)     But  the  record  saith,  Quia  i^^'^^^^'  r^^, 
r  J-  -i     ^  •  •     1  .,  •     •         ;  •     -jv  •    HuttoD,  118.) 

eadem  Llena  prec/nans  juit,  et  tn  periculo  mortis,  ipsa  aimiiti- 

tur    'per  mamtcaptionem,  Sc.    ad  habendum    corpus 

tQiSQ.~\usque  quind.  Michaelis,  &c.  (2).  J8^°  There  be  cer- 
b.  J  taine  maximes  in  the  law  concerning  executions,  as 
taking  some  instead  of  many.  Ea  quce  in  curia  nos- 
tra, rilh  acta  sunt,  debitce  executioni  demandari  debent.  Parum 
est  latam  esse  sententiam  nisi  mandetur  executioni.  Executio 
juris  non  habet  injuriam.  Executio  est  fructus  et  finis  leyis. 
Juris  effectus  in  executiojie  consistit.  Prosecutio  legis  est  gravis 
vexatio,  execiitio  legis  coronat  opus.  Boni  judicis  est  judicium 
sine  dilatione  mandare  executioni.  Favorabiliores  sunt  executi- 

ones 

(2)  The  record  at  large  is  stated  in  12  Rep.  fol.  126. 
YoL.  II.— 28 


289.  b.]  Of  Releases.         L.  3.  C.  8.  Sect.  504. 

ones  aliis  processihus  quibuscunquc.  But  now  let  us  hearewliat 
Littleton  saith. 

(5  Rop.  SS.  a.)  "-Sy  elegit."     This  is  also  a  judiciall  writ,  and  is  given  by 

the  statute  eyther  upon  a  recovery  for  debt  or  damages,  or  upon 
a  recognizance  in  any  court.     And  it  is  called  a  writ  of  elegit, 
[c]  W.  2.  cap.  18.  for  that  according  to  the  statute  that  saith,  [c]  Sit  de  castero  in 
(Plowd.  178.  b.)  electlone  illius,  dx.   sequihreve  qnod  vicecomcs  feri  faceat,  &c. 
vel  qudd  liheret  ei,  &c.  the  words  of  the  writ  bee,  Elegit  sibi  libe- 
ra ri,  c&c.     And  thereupon  it  is  called  an  elegit.     By  this  writ 
the  sherife  shall  deliver  to  the  plaintife  omnia  catalla  debitoi-ia 
(^excepfis  bobits  &  a.fris  cai-ucce)  et  medietatem  terrse.     And  this 
must  be  done  by  an  inquest  to  be  taken  by  the  sherife. 
[(/]  11  E.  1.  When  Littleton  wrote,  by  force  of  certaine  acts  [d]  of  parlia- 

Stat.  de  Acton,  nient,  execution  misjht  bee  had  of  lands  (besides  by  force  of  the 
ijurneu.  i.j    .   .  g^^^^-A  upon  Statutes  merchant,  statutes  staple,  and  recognizances 

demercatonbus,        J     J  _  v  '  _        i      ;  o 

27  E.  3.  cap.  22.  taken  in  some  court  or  record;  and  since  he  wrote,  upon  a  re- 
Vide  Fleta,  li.  2.  cognizance  or  bond  taken  by  force  of  the  statute  [*]  of  23  H.  8, 
^^P- ^'"  .„  before  one  of  the  chief  justices,  or  the  maior  of  the  staple,  and 

(6  Rep.  44.)  recorder  of  London  out  of  terme,  which  hath  the  effect  of  a 
[*]  23  H.  8.  statute  staple.  The  manner  of  the  executions  upon  body,  lands, 
r'T'oo'TT  s  ^'^^  goods,  appeareth  in  the  statutes  quoted  in  the  margent. 

cape's.    "   *  Since  Littleton  wrote,  a  profitable  statute  hath  been  made  [e] 

(5  Rep.  86.  b.      concerning  executions  of  lands,  tenements,  and  hereditaments, 
2  Inst.  6(7.)        whereby  it  is  provided,  that  if  after  such  lands,  &c.  be  had  and 
delivered  in  execution  upon  a  just  or  lawful  title,  wherewithall 
the  said  lands,  &c.  were  liable,  tied,  or  bound  at  such  time,  as 
they  were  delivered  or  taken  into  execution,  shall  be  recovered, 
devested,  taken,  or  evicted  out  of,  or  from  the  possession  of  any 
such  person,  &c.  before  such  times,  as  the  said  tenants  by  exe- 
cution, their  executors  or  assignes,  shall  have  fully  levied  their 
debt  and  damages,  for  the  which  the  said  lands,  &c.  were  taken 
in  execution ;  then   every  such   recoveror,  obligee,  and  recog- 
nizee, shall  have  a  scire  faeias  out  of  the  same  court  from  whence 
the  former  execution  did  proceed,  against  such  person  or  persons 
as  the  former  execution  was  pursued,  their  heires,  executors  or 
assignes,  to  have  execution  of  other  lands,  &c.  liable  and  to  be 
♦uken  in  execution  for  the  residue  of  the  debt  or  damages.    Sed 
cpus  est  inteiprete. 
Lib.  4.  fol.  66.         'tiiorefore,  first,  it  is  to  be  knowne,  that  where  the  tenant  by 
Fulwood's  case,   execution  hath  remedy  given  to  him  by  law  after  eviction,  there 
the  statute  extendeth  not  to  it ;  for  the  act  saith,  by  reason 
(4  Rep.  81.  whereof  the  said  recoverors,  obligees,  and  recognizees,  have  been 

2  Inst.  678.)        cleerly  set  without  remedy,  &c.  and  the  body  referreth  to  the 
preamble,  and  the  party  ought  not  to  have  double  satisfaction, 
one  by  the  former  lawes,  and  another  by  this  statute. 
(Cro,  338.)  And  therefore  if  part  of  the   land,  kc.  be  evicted  from  the 

tenant  by  execution,  this  statute  extendeth  not  to  it;  because  he 
should  hold  the  residue,  till  he  bo  fully  satisfied,  and  he  must  be 
contented  if  all  be  evicted  saving  one  acre  to  hold  that,  though 
it  be  but  a  poore  remedy;  for  no  new  execution  in  that  case  hee 
can  have  upon  this  statute.  Therefore  if  the  conusee  hath 
remedy  in  pra^enti  for  part,  or  in  futuro  for  all,  or  part,  this 
statute  extendeth  not  to  it. 

Secondly,  if  a  man  be  bound  to  A.  in  a  statute  of  a  thousand 
pounds,  and  by  a  latter  statute  to  B.  in  a  hundred  pounds,  and 
B.  first  extendeth,  and  then  A.  extendeth  and  taketh  the  land 

from 


L.  3.  C.  8.  Sect.  504.     Of  Releases.       [289.  h.  290.  a. 

from  B.  yet  B.  shall  have  no  aide  of  the  statute,  because  after 
the  extent  of  A.,  B.  shall  re-enjoy  the  land  by  force  of  his 
former  execution. 

Thirdly,  If  the  wife  of  the  conusor  recover  dower  against 
the  tenant  by  execution,  he  shall  hold  over,  and  shall  have  no 
aide  of  this  statute. 

Fourthly,  If  a  man  put  out  his  lessee  for  yeares,  or  disseise 
his  lessee  for  life,  and  after  knowledge  a  statute  and  execution 
is  sued  against  him,  and  the  lessees  re-enter,  the  tenant  by 
execution  after  the  leases  ended,  shall  hold  over,  and  have  no 
aide  of  this  statute. 

Fifthly,  This  statute  must  not  be  taken  literally,  but  accord- 
ing to  the  meaning ;  therefore  where  the  letter  is  untill  he,  &.c. 
or  his  assignees  shall  fully  and  wholly  have  levied  the  whole  debt 
or  damages  j  if  he  hath  assigned  severall  parcells  to  severall 
assignees,  yet  all  they  shall  have  the  land  but  till  the  whole 
debt  be  paid. 

Sixthly,  Where  the  words  be,  for  the  which  the  said  lands,  &e. 

were  delivered  into  execution.     A  disseisor  conveys  lands  to  the 

king,  who  granteth  the  same  over  to  A.  and  his  heircs  to  hold 

by  fealty  and  twenty  pound  rent,  and  after  granteth 

[390. "I  the  seigniory  to  i?.  i^.  knowledgeth  a  J5@^  statute,  and 
a.  J  execution  is  sued  of  the  seigniory.  ^4.dieth  without 
heire,  and  the  conusee  entereth,  and  is  evicted  by  the 
disseisee  ;  he  shall  have  the  aide  of  this  statute ;  and  yet  it  is 
out  of  the  letter  of  the  law,  for  the  seigniory  w-as  delivered  in 
execution  and  not  the  tenancy ;  but  he  was  tenant  by  execution 
of  those  lands,  and  therefore  within  the  statute.  But  the  per- 
quisite of  a  villeine  being  evicted  is  out  of  the  statute,  for  he  is 
tenant  in  fee  simple  thereof,  and  not  tenant  by  execution. 

Seventhly,  Where  the  words  be  (delivered  and  taken  in  exe- 
cution), yet  if  after  the  liherafe,  the  conusee  entereth  (as  he 
may)  so  as  the  land  is  never  delivered,  yet  he  is  within  the  re- 
medy of  this  statute,  for  he  is  tenant  by  execution. 

Eighthly,  Where  the  statute  saith,  then  every  such  recoveror, 
obligee,  and  recognizee  shall,  &c.  and  saith  not,  their  executors, 
administrators,  orassignes,  but  they  are  omitted  in  this  niateriall 
place,  yet  by  a  benigne  interpretation  this  statute  shall  extend 
to  them,  because  they  are  mentioned  in  the  next  precedent 
clause  of  the  eviction,  and  the  remedy  must  by  construction  be  (•^°*-  ^^^-  ''•) 
extended  to  all  the  persons  that  appeare  by  the  act  to  be 
grieved  ;  a  point  worthy  the  observation. 

Ninthly,  Where  the  statute  giveth  a  scire  far  out  of  the  same  (F.  N.  C.  26.3.  d.). 
court,  &c.  if  the  record  be  removed  by  writ  of  error  into  another 
court,  and  there  affirmed,  the  tenant  by  execution  that  is  evicted 
shal  have  a  scire  far'  by  the  equity  of  this  statute  out  of  that 
court,  because  the  scire fac  must  be  grounded  upon  the  record. 
Et  sic  (le  simiiibus. 

Tenthly,  Where  the  statute  giveth  the  scire  fac'  against  suclii 
person  or  persons.  &c.  that  were  parties  to  the  first  execution,, 
their  heires,  executors,  or  assigncs,  &c.  this  must  not  be  taken, 
so  generally  as  the  letter  is  ;  for  if  the  first  execution  wci-e  had; 
against  a  purchaser,  kc.  so  as  nothing  was  liable  in  his  hands, 
but  the  land  recovered ;  if  this  land  be  evicted  from  tenant  by 
execution,  no  scire  fac  shall  be  awarded  against  him,  his  heires, 
executors,  or  assignes.  But  if  he  hath  otiier  lands  subject  to 
the  execution,  then  a  scire  fac  lyeth  against  him  or  his  assignes, 

but 


290.  a.  Of  Keleases.     L.  3.  C.  8.  Sect.  504:. 

but  not  against  his  executors  ;  neither  in  that  case  can  he  have 
a  scire  fac  upon  this  statute  against  the  first  debtor  or  re- 
cognizor, because  it  giveth  it  onely  against  him,  &c.  that  was 
party  to  the  first  execution,  his  heires,  executors,  or  assigncs. 
But  if  there  be  severall  assignes  of  severall  parcels  of  lands 
subject  to  the  execution,  one  scire  fac'  upon  this  statute  shall 
lye  against  all  the  assignes.  Scdest  modus  in  rebus.  This  little 
taste  shall  give  a  light  to  the  diligent  reader,  not  only  to  see  into 
the  secrets  of  this  statute,  but  to  others  also  of  like  nature. 

And  by  the  statute  of  23  II.  8.  caj).  6,  it  is  provided,  that  the 

obligee,  <fcc.  shall  have  in  every  point  against  such  recognisor, 

&c.  like  proces,  execution,  commodity  and  advantage  in  every 

behalfe,  as  hath  been  had  or  made  upon  the  statute  staple,  and 

under  such  manner  and  forme,  as  is  for  the  same  statute  staple 

provided  :  by  force  of  which  branch,  if  the  tenant  by  execution 

by  force  of  the  act  of  23  II.  8,  be  evicted,  he  shall  have  the  remedy 

provided  for  tenants  by  execution  upon  a  statute  staple  by  the 

40  E.  3.  26.  b.      act  of  32  H.  8.    In  like  manner  by  force  of  that  clause  of  23  H.  8, 

•44  E.  3.  fol.  10.    jf  ^i^Q  extendors  upon  a  statute  staple,  &c.  doe  extend  the  lands, 

is^.^'r.^lo.         ^^-  ^*  ^^^  ^^S^  ^  ^^^^'  ^^'^^  obligee  may  pray  that  the  extendors 

themselves  may  take  the  lands,  &c.  at  that  rate,  &c.  by  force  of 

the  said  statutes  of  Acton  Burnel  and  De  Mcrcatorihus.     Also 

no  execution  shall  be  sued  against  the  heire  within  age. 

But  note,  that  upon  a  writ  of  elegit  the  plaintife  cannot  make 
any  such  prayer,  because  those  ancient  statutes  doe  extend  to 
a  statute  merchant,  or  a  statute  staple  only,  and  neither  to  a 
recovery  of  debt  or  damages,  not  to  a  recognizance  in   court ; 

[/]  Mich.  4  &     and  so  hath  it  been  resolved  [/]• 

5  Ph.  and  Mar. 

Bendloes,  8,  by  all  the  justices  of  the  common  pleas.     (Plowd.  82.  b.  205.  b.) 

Nota,  it  appeareth  by  the  preamble  of  the  said  act  of  32  H.  8, 
{ff\  15  E.  3.  and  by  divers  [^]  bookes,  that  after  a  full  and  perfect  execution 

Extent,  7.  had  by  extent  returned  and  of  record,  there  shall  never  be  any 

R  ^ '^r    'n        re-extent  upon  any  eviction  ;  but  if  the  extent  be  insufficient  in 
value.  22.  law,  there  may  go  out  a  new  extent. 

31  E.'s.  ' 

Exten.  13.  17  E.  3.  76.  15  E.  3.  Scire  fae.  115.  7  H.  4.  19.  22  Ass.  44.  22  E.  3 
fol.  ult.  44  E.  3.  10.  9  H.  7.  9.  15  H.  7.  15.  13  Eliz.  Dier,  299.  29  H.  8.  Stat. 
Merchant,  Br.  40.     (2  Cro.  13.) 

[7i]  If  a  man  have  a  judgement  given  against  him  for  debt  or 
[/)]  11  E.  3.  damages,  or  be  bound  in  a  recognizance,  and  dieth  his  heire 
aF'  q'-^^  ^' '''  ■within  age,  or  having  two  daughters,  and  the  one  within  age  ; 
24  E.  3.  28.  no  execution  shall   be  sued   of  the  lands  by  elegit  during  the 

29  Ass.  37.  minority,  albeit  the   heire  is  not  special!}'  bound,  but  charged 

A7  A  IT'  ^^  terre  tenant  [t]  ;  and  so  against  an  heire  within  age  no  execu- 

47  E.  3.  7.  tio'i   shall  be  sued  upon  a  statute  merchant  or  staple,  nor  upon 

Lib.  3.  fol.  13.      the  obligation  or  recognizance  upon  the  statute  of  23  H.  8,  for 
sir  Ti' lUiam  it  is  excepted  in  the  process  against  the   heire.     Neither  if  the 

Brooke  A^e^  33.  heire  within   age   indow    his    mother  shall  execution  be  sued 
(2  Cro.  338.  694.  against  her  during  her  minority  (1). 

Siderf.  184.)  ^  ^  ^   ^    ^ 

[(•]  Temps  E.  1.     Ass.  402.  417.     16  H.  7.  6.     Livre  d"entr.  545.     Brooke,  Age,  33. 

(1  Cro.  295.) 

Note, 

(1)  B.  R.  Grevill  and  Bracehridge's  case.     Xota,  P.  1656,  the  point  of  a 
special  verdict  was  as  follows  :    The  conusor  leased  for  yeareSy  and  died,  his  heir 

within 


L.  3.  C.  8.  Sect.  50  L       Of  Releases.       [290.  a.  290.  b. 

Note,  that  by  the  statute  [7c]  of  27  E.  3.  the  execution  of  lands  [A]  27  E.  3. 
upon  a  statute  staple  is  referred  to  the  statute  merchant,  and  cap.  22. 
by  the  statute  De  Mercnforibus  no  execution  shall  be  had  against 
the  heire  so  long  as  he  is  within  age. 

Also  since  Littleton  wrote,  there  is  a  right  profitable  statute  [/]  [/]  I?,  Eliz, 
made  against  fraudulent  feoftiucnts,  gifts,  grants,  &c.  ^'^.P-  o'  r  i  en 

t290."|  judgements  and  executions,  as  well  of  lands  and  JBS^'te-  ^^^  Xwyne's 
b.     J   neuients  as  of  goods  and  chattels,  to  delay,  hinder,  or  case. 

defraud  creditors  and  others  of  their  just  and  lawful!  Li.  5.fo.  60. 
actions,  suits,    debts,   damages,   penalties,    forfeitures,   heriots,  Lib  o.  fo.  is. ' 
mortuurie.'S,  and  releases  (A),  for  the  exposition  of  which  and  PakLinau's  ease, 
other  statutes,  see  the  authorities  quoted  in  the  margeut(l).         Lib.  li).  fo.  50. 

"  '  ^  o         v  ^_|jg  Chanc.  of 

Oxford's  case.     See  the  Statutes  of  3  II.  7.  cap.  4.  &  50  E.  3.  cap.  6.     Mich.  12 
&  13  Eliz.  Dier,  295.     18  Eliz.  Dier,  351.     (8  Rep.  132.) 

And 

(A)  "releases"  o/jpears  to  be  here  printed  by  mistake  instead  q/"  reliefs. 

icithiii  age,  whether  the  execution  (ichich  was  admitted  on  all  sides  to  he  void 
a  /ainst  the  infant),  was  good  to  hind  the  term  for  years.  Glyn,  chief  justice,  and 
the  court,  andcdso  Windham,  at  the  har,  denied  peremptorily  the  case  of  lord  Coke 
fo  he  law,  unless  it  is  understood  that  the  marriage  2vas  held  he/ore  the  statute; 
for  th"Ji  it  is  trufi  that  it  shall  not  he  extended,  sed  non  quia  est  privilege /or 
the.  infancy  of  the  h'iir ;  hut  hecause  the  wife  is  in  hy  her  husband,  and  tlicrefore 
has  the  better  possession,  and  thus  comes  in  paramount  to  the  statute  ;  hut  if  the 
statute  was  before  the  marriage,  then  clearly  the  dower  of  the  wife  is  extendible  ; 
for  the  endowment  breaks  the  descent,  and  she  is  in  by  her  husband  of  a  possession 
ch'trr/ed,  and  there  is  no  prejudice  to  the  infant  heir  ;  so  that  the  freehold  is  out 
of  him,  loithout  any  rent  being  incident  to  his  reversion.  Nota,  the  possibility 
that  the  wife  might  die  during  the  minority,  and  before  the  extent  rvas  satisfied, 
%oas  not  regarded.  And  nota,  M.  6,  7  Eliz.  C.  B.  in  Egertons  Reports  {cited 
by  JSfoy  in  his  lecture  in  Lincoln  s-Inn),  a  like  ca^e  was  adjudged.  Feme  tenant 
in  tail  confessed  a  judgment ;  took  husband  and  died.  The  baron  was  tenant 
by  the  curtesy,  anl  the  statute  was  extended,  and  then  he  surrendered  to  the  heir, 
and  loas  extended  still,  and  well,  per  curiam,  for  the  reversion  teas  not  preju- 
diced. And  afterwards,  Trin.  1656,  resolved,  that  an  extent  lay  well  against 
the  lesiee,  because  the  infancy  of  the  heir  is  a  personal  privilege.  (  Qnoire,  if  the 
rent  is  gone.  It  seems  so;  but  the  rent  was  not  regarded.)  Lord  Nott.  MSS. 
—[Note  248.] 

(I)  lu  a  former  note,  an  attempt  was  made,  to  give  the  reader  an  Elc- 
m"n'an/  Outline  of  the  Doctrine  of  Cses  ;  an  att  nnpt  will  now  bo  made,  to  give 
him  alike  ELEMEXTARY  OUTLIXE  OF  SOME  LEAD]  XG  FOLVTS 
FY  THE  DOCTRINE  OF  TRUSTS  AFECTLXG  REAL  FROFERTY. 

I.  It  may  not  be  disagreeable  to  the  reader,  that  it  should  be  preceded  by  a 
short  historical  view  of  the  Introduction  of  Trusts  into  English  Juris- 
prudence. 

I.  1.  Two  circumstances,  in  particular,  gave  them  rise.  The  first  was,  the 
W'lnt,  in  many  instances,  of  a  judicial  process  to  enforce  theperformance,  or  to 
recover  satis  fiction  for  the  non-pnformance,  of  several  obligations  arising  in  cases 
of  trust,  which  were  supposed,  (and  certainly  in  some  cases  with  reason),  to  be 
founlel  on  thcco!n:n)n  rules  of  natural  morality  and  justice;  but  which,  being 
uaassisted  by  the  common  law,  often  depended  for  their  effect  on  the  conscience, 
or  honour  ouly  of  a  person,  whose  interest  it  was  to  leave  them  unperformed. 
Thus,  in  the  case  of  real  property,  (to  which  these  annotations  are  naturally 
coafiaoJ),  the  transfer  of  lauJ,  in  the  simplicity  of  the  common  law,  commenced 

and 


290.  b.]  Of  Eeleases.  L.  3.  C.  8.  Sect.  504. 

And  it  is  to  be  observed,  that  the  words  of  the  said  act  of  13 
Eliz.  are,  Be  it  therefore  declared,  ordained  and  enacted:  and 
therefore  like  cases  in  semblable  mischiefe  shall  be  taken  -within 
the  remedy  of  this  act,  by  reason  of  this  word  [declared) ;  where- 
by it  appeareth  what  the  law  was  before  the  making  of  this  act. 
But  let  us  now  rcturne  to  Littleton. 

"  Fieri 

and  terminated  in  the  single  fact  of  the  transfer.  Of  the  contract  to  make  it, 
of  an  agreement  to  hold  the  lands,  or  apply  the  profits  of  them,  for  a  particular 
purpose,  the  law  took  no  notice.  The  parties,  therefore,  beneficially  interestir 
in  the  performance  of  any  such  contract  or  agreement,  were  either  without  any, 
or  without  an  adequate  remedy.  Yet,  in  all  these  cases,  a  duty  was  considered 
to  arise,  which,  though  either  wholly  unnoticed,  or,  at  most,  imperfectly  noticed, 
by  law,  was  felt,  and  admitted  by  all,  to  be  honourable,  a  moral,  and  a  con- 
scientious obligation.  Cases  of  a  similar  description  frecjuently  arose.  In  all 
of  them  a  right  was  thought  to  exist,  for  which  the  courts  of  law  had  provided, 
and  for  which,  the  feudal  policy  could  from  its  nature  provide  no  sutficient 
remedy. — For  this  grievance,  the  courts  of  common  law  affording  either  no 
redress,  or  an  insufiicient  redress,  a  remedy  was  necessarily  sought  from  an- 
other hand,  and  a  resort  to  the  chancellor,  was,  from  the  peculiar  nature  of  his 
office,  his  character  and  habits,  extremely  natural. 

I.  2.  This  naturcd  resort  to  chancer)/  for  redress  in  cases  of  trusts,  may  be 
considered,  as  the  other  principal  circumstance,  to  which  they  owe  their  rise. 
— A  description  of  persons,  probably  in  a  subordinate  rank  of  life,  was  known 
in  the  Roman  law,  by  the  appellation  of  Cancellarii,  as  early  as  the  period  of 
the  first  Caesars. — In  the  Byzantine  court,  the  chancellor  was  an  ofiicer  of  the 
highest  distinction.  In  the  courts  of  the  emperors  of  the  West,  and  almost  in 
all  the  sovereignties,  into  which  that  empire  broke,  upon  its  fall,  mention  is 
made  of  an  officer  of  the  same  name  and  character.  An  officer,  of  the  same 
description,  (but  in  the  early  times,  often  found  under  the  appellation  of  the 
Referendary,)  occurs  in  the  historical  monuments  of  almost  every  country  in 
Europe,  where  the  feudal  polity  has  prevailed.  It  was  so  much  considered 
an  appendage  of  sovereignty,  that,  after  the  usurpation  of  the  vassals,  every 
noble  who  pretended  to  sovereign  power,  appears  to  have  had  his  chancellor. 
To  this,  the  actual  chancellors  of  bishops  and  palatines  probably  owe  their 
origin.  See  Gothofred' s  A^jtes  ad  Leg.  3.  de  Asses,  of  the  Codex  Theodosianus, 
and  the  edition,  hij  the  Maurist  monks  of  Du  Cavge,  art.  Cancellarius.  With 
respect  to  our  own  country, — in  Hob.  63.  it  is  observed,  that  the  court  of 
chancery  is  as  ancient  as  the  kingdom  itselfe.  Lord  Coke,  4  Inst.  78.  maintains, 
that  the  British  and  Saxon  kings  had  their  chancellors  and  courts  of  chancery. 
— Mr.  Selden,  OS".  Can.  sect.  1.  says,  the  first  authentic  mention  of  a  chan- 
cellor is  of  the  year  920,  and  that,  many  of  the  Saxon  lineage,  before  the 
Conquest,  had  their  chancellors.  With  us,  as  in  almost  every  other  country, 
whose  jurisprudence  is  of  feudal  extraction,  the  office  of  chancellor  originally 
■was,  to  supervise  all  public  instruments,  which  had  the  king's  signature,  to 
keep  them  in  his  custody,  and,  after  the  custom  of  sealing  deeds  came  in  use, 
to  have  the  charge  of  the  king's  official  seal.  3  Blackst.  Com.  c.  4.  s.  8. — To 
administer  justice  has  always  been  an  appendage  of  royalty.  This  was  the 
case  in  the  feudal  system,  on  principles  peculiar  to  itself.  There,  the  military 
command,  and  the  administration  of  justice  in  the  feud,  were  always  united 
in  the  same  person,  and  extended  over  the  same  territory.  But  subordination 
and  habits  of  obedience  were  often  wanting  in  the  feud.  From  the  boisterous 
spirit  of  that  government,  it  must  frequently  have  happened,  that  the  judicial 
sentences  of  the  courts  would  fail  of  effect,  if  they  were  not  actually  executed 
by  the  military  power  : — the  military  power  was  under  the  direction  of  the 

chief: 


L.  3.  C.  8.  Sect.  504:.        Of  Keleases.  [290.  b. 

"  Fieri  facias."     This  is  a  writ  mentioned  in  the  said  statute,  "^^'-  2.  Cap.  18. 
but  is  a  writ  of  executinn  at  the  cnniraon  law.     And  it  is  called 
•A  fieri  facias,  because  the  words  of  the  writ  directed  to  the  sherife 
be,  quod  fieri  facias  de  bonis  (&  catallis,  dx.  and  of  those  words 
the  writ  taketh  its  denomination. 

But  note,  that  a  cajijias  ad  satisfaciendum  is  not  mentioned  in 

the 


chief: — to  him,  therefore,  for  his  military  aid,  wherever  the  party  had  to  con- 
tend with  a  powerful  adversary,  it  was  necessary  to  recur,  in  order  to  secure 
the  effect  of  a  judicial  sentence.     This  was  actually  purchased  by  fines,  and 
became  one   of   the  most  splendid  and  lucrative  prerogatives  of  sovereignty. 
The  crown  was  always  attentive   to  secure  to  itself  the  exclusive  use  of  it. 
This  was  principally  affected  by  its  assuming  an  exclusive  right  of  issuing  the 
writ,  which,  from  its  being  the  beginning  or  foundation  of  the  suit,  is  called 
the  original  writ.     This  answered  the   double  purpose  of   showing,  that  all 
power  of  judicature  originated  with  the  king,  and  of  securing  to  him  the  proper 
fines.      See  Gilbert's  Fvrum  Komanum,  j^.  10,  and  Phillips  on  Fines  for  Ori- 
Ijinal  Writs.     This  original  writ  is  a  nuindatory  letter  from  the  king  on  parch- 
ment, sealed  with  his  great  seal,  directed   to  the  sheriff"  of  the  county  where 
the  injury  is  committed  or  supposed  to  be   committed  requiring  him  to  com- 
mand the  wrong-doer  or  party  accused,  either  to  do  justice  to  the  complainant, 
or  else  to  appear  in  court,  and  answer  the  acquisition  against  him.    3  Blackst. 
Com'.  8th  ed.  p.  273.     lu  the  early  period  of  our  law,  injuries,  which  were  the 
subject  of  judiciall  process,  were  few,  and  being  few,  were  well  known.     In^ 
the  course  of   time,  the  forms  of  injuries  were  multiplied,  and  new  writs,  of 
course,  became  necessary.     Where  this  was  the  case,  it  was  usual  to  petition 
parliament,  and  proper  remedies  were  given  for  the  peculiar  cases ;  but  these 
petitions  multiplying,  it  was  enacted,  by  the  statute  of  Westminster  2, 13  Edw. 
1.  c.  24,  that,  where,  in  one  case,  a  writ  should  be  found  in  the  chancery,  and 
in  a  like  case,  falling  under  the  same  right,  and  requiring  like  remedy,  no  pre- 
cedent of  a  writ  could  be  produced,  the  clerks  in  chancery  should  form  a  new 
one.     This  act,  undoubtedly,  gave  the  chancellor  a  great  degree  of  power,  and 
in  the  ekercise  of  it  he  usurped  such  an  extent  of  remedial  authority,  that,  to 
use   Mr.   Reeve's  expression   (History  of  the  Engl.  Law,  8i'o.  edit.fo.  101.) 
every  sort  of  relief  seemed  within  his  jurisdiction.     It  must  be  added,  that,  as 
the  chancellor  was  generally  an  ecclesiastic,  every  species  of  injury  arising 
from  a  supposed  breach  of  a  religious,  a  moral,  or  a  conscientious  obligation, 
seemed  properly  to  fall  within  his  cognizance. — Such  was  the  office  of  chancel- 
lor, and  such   the  character  of  the  persons,  by  whom  it  was  generally  filled, 
about  that  period  of  time,  when  the  injuries  we  have  been  speaking  of  may 
be  supposed  to  have  become  frequent.    To  the  chancellor,  therefore,  in  cases  of 
this  description,  it  was  natural  to  have  recourse. 

I.  3.  Still,  however,  while  he  confined  himself  to  the  forming  of  new  writs, 
his  proceedings  must  fail  of  cff'ect,  as  the  utmost  he  could  do,  was  to  send  the 
parties  to  the  courts  of  law,  where,  as  those  courts  could  not  take  cognizance 
of  the  supposed  injury,  it  was  vain  to  send  them.  He  did  not,  therefore,  rest 
here;  but  introduced  a  new  judicial  jwwer  into  the  jvrisprndence  of  Enjlandj 
ly  the  invention,  or  rather  by  a  new  application,  of  the  writ  of  subpana.  This 
writ  compelled  the  party  to  appear  in  court ;  a  petition  was,  thereupon,  lodged, 
in  chancery,  containing  the  articles,  to  which  he  was  obliged  to  answer  upon 
oath.  In  the  case,  therefore,  of  a  trust,  the  party  was  obliged  to  disclose  it, 
and  the  court  then  decreed  him  to  carry  it  into  execution.  This  gave  rise,  or 
at  least,  stability,  to  equitable  estates.  Nothing  could  be  more  contrary  than 
estates  of  this  description  to  the  genius  of  the  feudal  law.  Hence  they  fre- 
quently were  a  subject  of  complaint;  and  the  statute  of  uses,  evidently,  was 

intended 


290.  b.J  Of  Releases.       L.  3.  C.  8.  Sect.  504. 

the  said  statute,  because  no  capias  ad  aatis/ac  did  lye  at  the 
common  law  upon  a  judgement  for  debt,  &c.  or  damages,  but 
only  when  the  originall  action  was  quare  vi  &  armis,  &c.  But 
latter  statutes  have  given  a  capias  ad  satis/ac'  where  debt,  &c. 
[m]  Lib.  3.  fol.     or  damages  are  recovered  ;  as  it  appoareth  at  large  [m]  in  Sir 

11.  Sir  Wilham     ■^Yilliam  Herbert's  case,  whereunto  I  referre  the  reader. 
Herbert  s  case.  ' 

(Hob.  283.)     (F.  N.  B.  101.) 

And 


intended  to  extirpate  them  entirely.  They  have,  however,  been  preserved. 
The  consequence  has  been,  that,  though  they  were,  originally,  a  fraud  upon 
tenure;  though,  in  every  stage  of  their  progress,  they  were  a  subject  of  alarm 
and  jealousy ;  though  their  existence  is  a  direct  violation  of  the  statute  of 
uses,  and  though  the  courts  of  law  profess,  in  most  cases,  (if  the  expression  may 
be  allowed),  legal  ignorance  even  of  their  existence,  still  they  form  a  con- 
siderable part  of  the  jurisprudence  of  the  country;  they  affect  and  regulate, 
directly  or  indirectly,  almost  all  the  real,  and  a  great  portion  of  the  personal 
property  of  the  kingdom;  they  have  a  judicature,  and  a  forme  of  process,  of 
their  own ;  and  these,  in  many  instances,  control  even  the  courts  of  law. 

II.  The  27  Hen.  8.  cap.  10.  provided,  that  the  use  and  possession  should 
always  be  united;  by  declaring,  that,  '^  When  any  person  shall  be  seised  of 
"  lands,  &c.  to  the  use,  confidence,  or  trust,  of  any  other  person  or  body  politic, 
"  the  person  or  corporation  entitled  to  the  use  in  fee  simple,  fee  tail,  for  life, 
"  or  years,  or  otherwise,  shall  from  thenceforth  stand  and  be  seised  or  pos- 
"  sessed  of  the  land,  &c.  of  and  in  the  like  estates  as  they  have  in  the  use, 
"  trust,  or  confidence ;  and  that  the  estate  of  the  person  so  seised  to  uses  shall 
"  be  deemed  to  be  in  him  or  them  that  have  the  use,  in  such  quality,  manner, 
"form,  and  condition,  as  they  had  before  in  the  use."  But,  notwithstanding 
this  statute,  there  are  three  ways  of  creating  a  use  or  trust,  which  still  remain 
as  at  common  law ;  and  this  use  or  trust  is  a  creature  of  the  courts  of  equity, 
and  subject  only  to  their  direction.  First,  where  a  man  seised  in  fee,  raises 
a  term  of  years,  and  limits  it  in  trust  for  A.  &c.  this  the  statute  cannot  exe- 
cute, the  termor  not  being  seised.  2dly.  Where  lands  are  limited  t6  the  use 
of  A.  in  trust  to  permit  B.  to  receive  the  rents  and  profits,  for  the  statute  can 
only  execute  the  first  u.se.  3dly,  Where  lands  are  limited  to  trustees,  to 
receive  and  pay  over  the  rents  and  profits  to  such  and  such  persons,  for  here 
the  lands  must  remain  in  them  to  answer  those  purposes ;  and  these  points 
were  agreed  to  in  Trinity  term  1700,  per  curiam,  in  Simpson  v.  Turner,  1  Eq. 
Ca.  Abr.  220. 

III.  The  best  definition  of  a  trust  in  equity  is  that  which  is  given  by  the 
old  writers,  of  an  use  at  common  law ;  viz.  "  A  confidence  which  is  not 
<'  issuinof  out  of  the  land,  but  a  thing  collateral,  annexed  in  privity  to  the  estate 
"  and  to  the  person  touching  the  land,  sciL  that  cestui/  que  use  shall  take  the 
"  profits,  and  that  the  terre  tenant  shall  make  estates  according  to  his  direction." 
These  are  the  words  used  in  Chudleigh's  case,  1st  Hep  121.  a.  b.  for  the  defi- 
nition of  an  use.  Thus  he,  who  hath  a  trust,  hath  neithery?<,s  in  re  nor  Jus 
ad  rem;  but  only  a  confidence  and  trust,  for  which  he  hath  no  remedy  at  the 
common  law,  but  only  a  remedy  by  a  subpoena  in  chancery.  This  is  the  import- 
ant distinction  between  trusts  and  commons,  rents,  and  such  like  hereditaments. 
These  follow  the  lands,  into  all  the  hands  to  which  they  come ;  so  that,  if  a  person 
is  deforced,  still  the  land  in  the  hands  of  the  deforceor  is  subject  to  the  rent,  or 
common,  with  which  the  land  is  charged.  But,  generally  speaking,  it  is  other- 
wise with  respect  to  a  trust,  unless  the  estate  of  the  deforceor,  from  his  having 

notice 


L.  3.  C.  8.  Sect.  504.     Of  Releases.  [290.  b. 

And  it  is  to  be  observed,  that  these  three  writs  of  execution 
ought  to  be  sued  out  within  the  yeare  and  the  day  after  judge- 
melit ;  but  if  the  plaintife  sueth  out  any  of  them  within  the  yeare, 
he  may  continue  the  same  after  the  yeare  until  he  hath  execu- 
tion. And  to  none  of  these  writs  of  executions  the  defendant 
can  pleade ;  but  if  he  hath  any  matter  since  the  judgement  to 

discharge 


notice  of  the  trust,  or  upon  some  other  ground,  is,  in  the  consideration  of  a 
court  of  equity,  considered  as  charged  with  the  trust. 

IV.  This  doctrine  is  considered  as  particularly  important,  in  its  influence 
on  limitations  to  Trustees  for  preHcrving  Contingent  Remcnndevs,  and  as  it  is 
the  foundation  of  the  doctrines  of  equity  on  cases  arising  from  the  destruc- 
tion of  those  remainders  by  the  trustees.  This  was  discussed  at  great  length 
iu  Chudleigh's  case,  1  Rep.  120.  a.  The  doctrine  laid  down  in  that  case,  with 
respect  to  the  destruction  of  contingent  uses  at  common  law,  appears  to  be,  that, 
to  the  standing  seised  of  an  use  at  common  law,  two  things  were  necessary; 
one,  that  the  estate  upon  which  the  uses  were  declared  should  subsist ;  this 
was  called  privity  of  estate  :  the  other,  that  the  party  so  standing  seised  should 
have  notice  of  the  use  ;  this  was  called  privity  to  the  person.  If  either  of  these 
failed,  the  use  was  gone.  Whenever,  therefore,  a  person  seised  of  a  life  estate 
in  posses.sion,  in  trust  for  another,  conveyed  by  fine,  feoffment,  or  recovery,  the 
person  taking  under  that  conveyance,  acquired,  in  consequence  of  the  forcible 
nature  of  those  modes  of  conveyance,  a  new  estate,  and  thereby  the  privity  of 
estate  was  necessarily  lost.  But,  if  a  person  having  a  fee,  conveyed  that  fee, 
then  the  privity  of  estate  remained.  Still,  if  the  grantee  had  not  notice  of  the 
trust,  the  privity  to  the  person  was  gone.  In  the  latter  instance,  however,  this 
important  distinction  was  made,  that,  if  the  grantee  was  not  a  purchaser  for  a 
valuable  consideration,  the  law  implied  notice ;  that  is,  presumed  him  to  be 
acquainted  with  the  use;  this  continued  the  privity  to  the  person.  Thus  stood 
the  doctrine  of  the  destruction  of  contingent  remainders  at  the  common  law. 
The  statute  of  uses  made  no  difference,  as  to  the  legal  consequences  of  this 
doctrine,  in  those  cases  where  the  trustee  had  an  estate  for  life  only.  If  he 
conveyed  by  fine,  feoffment,  or  recovery,  the  grantee  necessarily  took  an  estate 
in  fee  simple.  This,  as  was  observed  before,  was  a  new  estate.  Privity  in 
estate  therefore  failed.  But  in  those  cases,  where  the  whole  fee  was  conveyed 
to  the  trustees  to  several  uses  in  strict  settlement,  it  was  executed  in  the 
cestiiijs  que  use  ;  and  then,  where  no  use  was  limited  to  the  trustees  themselves, 
nothing  remained  in  them,  so  that,  in  this  respect,  there  was  no  difference 
between  them  and  strangers  to  the  deed.  An  actual  estate  might,  however, 
be  limited  to  them.  Of  this  practitioners  availed  themselves,  to  support  con- 
tingent remainders,  and  prevent  their  being  destroyed.  This  gave  rise  to  the 
limitation,  now  so  frequently  inserted  in  wills  and  settlements,  of  an  estate  to 
trustees  for  preserving  contingent  remainders. 

V.  To  present  this  pointedly  to  the  reader's  observation,  it  may  be  useful 
to  state  succinctly  THE  GRADUAL  PROGRESS  OF  SETTLEMENTS. 

V.  1.  They?/-.si;  attempt  at  a  settlement  appears  to  be  the  creation  of  an  estate 
in  fee  simple  conditional.  This  had  two  effects,  that  of  suspending  the  absolute 
power  of  alienation,  till  the  birth  of  issue,  and  that  of  preserving  the  inheritance 
in  a  particular  line  of  succession,  so  as  to  make  it  devolve  through  a  particular 
line  of  heirs,  in  exclusion  of  others.  Bracton  mentions,  lib.  18.  that,  by  this 
mode  of  limitation,  the  estate  might  be  settled  by  a  person,  on  his  eldest  son 
and  the  heirs  of  his  body, — and  if  he  had  no  heirs,  or  haying  heirs,  if  they 
afterwards  failed,  then  to  his  second  son  and  the  heirs  of  his  body,  with   like 

limitations 


290.  b.J  Of  Eeleases.        L.  3.  C.  8.  Sect.  504 

discharge  liiiu  of  execution,  he  may  have  an  ainh'ta  querela,  and 
relieve  himselfe  that  way,  but  pleade  he  cannot.  As  if  the 
plaintife  after  release  unto  the  defendant  all  executions,  yet  in 
none  of  these  three  writs  he  shall  pleude  it,  but  is  driven  to  his 
audita  querela,  as  hath  been  said. 

limitations  to  his  other  sons  successively  and  their  respective  issue;  and  in 
default  of  all  these,  to  the  party  himself  and  his  heirs.  This  appears  the  most 
extended  and  complicated  plan  of  settlement,  which  could  be  effected  through 
the  medium  of  this  mode  of  limitations. 

V.  2.  Then  came  the  statute  de  donis  condltionalthus.  That  statute  took 
away  the  power  of  alienation  of  the  tenants  in  fee  simple  conditional,  and 
thereby  preserved  the  fee  to  the  issue,  and  the  reversion  to  the  donor.  This 
naturally  gave  rise  to  the  complex  modification  of  property,  to  which  the  rever- 
sion of  an  estate,  out  of  which  an  estate  tail  is  first  carved,  is  now  subject. 
By  this  mode  of  settlement  land  was  at  once  completely  taken  out  of  commerce 
and  involved  in  the  intricate  fetters  of  multiplied  entails.  This  may  be  consi- 
dered as  the  second  stage  of  settlements. 

V.  3.  But  entails  Avere  again  subjected  to  the  alienation  of  the  tenant  in  tail 
by  the  introduction  of  common  recoveries,  about  the  reign  of  Ed.  4.  and  the 
introduction  of  fines  by  the  statute  of  4  H.  7.  To  prevent  this,  in  some  mea- 
sure, women  seised  of  estates  tail  of  the  gift  of  their  husbands,  were  prohibited 
by  the  11  H.  7.  c.  20.  from  alienating  these  estates.  To  bring  their  estates 
within  the  protection  of  this  statute,  it  became  usual  to  limit  the  husband's 
estates,  to  the  husband  and  wife,  and  the  heirs  of  the  body  of  the  wife  by  the 
husband.  The  consequence  of  this  was,  that  the  estate  was  secured  to  the 
parents  during  their  lives,  and  was  secured  to  the  issue  against  the  act  of  either 
parent.  Nothing  short  of  the  concurrent  act  of  both  parents  could  deprive  the 
issue  of  the  estate.  A  more  rational  system  of  settlement,  (particularly  after 
the  statute  of  the  32  H.  8.  c.  27.  had  enabled  tenants  in  tail  to  lease),  could 
not  perhaps  be  devised.  The  estate  might  be  limited  to  the  male  or  the  female 
line,  at  the  pleasure  of  the  parties.  It  was  protected  against  the  caprice  or 
extravagance  of  one  of  the  parties,  so  long  as  the  other  refused  to  co-operate 
in  unfettering  the  entail,  while  there  was  a  provision  for  unforeseen  events,  by 
their  co-operation  during  their  joint  lives  ;  and  during  the  life  of  the  surviving 
parent,  the  same  effects  might  be  produced  by  the  co-operation  of  that  parent 
and  the  issue;  and  after  the  decease  of  both  parents  the  estate  was  restored  to 
the  issue,  with  a  complete  power  of  alienating  it.  It  may  be  a  question  whe- 
ther, even  now,  this  mode  of  settlement  be  not  the  most  proper  for  all  those 
cases,  where,  by  reason  of  the  smallness  of  the  property,  or  any  other  circum- 
stance, the  intricate  system  of  settlement,  now  in  use,  is  not  proper.  This 
may  be  described  as  the  third  staye  of  settlements. 

V.  4.  A  fourth  was  effected  by  limiting  life  estates  to  the  parents,  with 
remainders  to  their  unborn  children  by  purchase.  This  was  introduced,  soon 
after  it  was  discovered  how  completely  estates  tail  of  every  description  were 
subject  to  the  alienation  of  the  tenant  in  tail  by  fine  or  recovery.  But  it  did 
not  soon  become  general.  It  was  obvious,  that,  in  every  case,  where  the  parent 
was  himselfe  the  immediate  reversioner,  and  in  every  case,  where  the  parent 
not  being  the  immediate  reversioner,  could  procure  the  concurrence  of  the 
immediate  reversioner,  the  unborn  children  were  at  the  mercy  of  the  parent. 
This  gave  rise  to  the  introduction  of  trustees  for  preserving  contingent  remain- 
ders. This  limitation  is  supposed  to  have  been  first  discovered  and  introduced 
into  practice  by  sir  Orland  Bridgman,  during  the  time  of  the  Usurpation. 
Whatever  doubts  may  formerly  have  been  entertained  on  this  head,  it  is 
now  settled  beyond  the  reach  of  controversy,  that,  under  a  limitation  of  this 

description, 


L.  3.  C.  8.  Sect.  504.       Of  Releases. 


[290.  "b. 


description,  the  trustees  take  a  vested  estate  of  freehold.     Theiuterposition  of 
this  estate  prevents  the  tenant  for  life  from  surrendering  to  him  in  the  rever- 
sion, and  if  he  aliens  his  estate  by  any  of  those  modes  of  conveyance,  which 
would  otherwise  destroy  the  contingent  remainders,  and  by  a  ncceesary  conse- 
quence, be  a  forfeiture  of  the  estate,  it  authorizes  the  trustees  to  enter  for  the 
forfeiture.     This,  to  use  one  of  the  explanatory  expressions  inserted  in  these 
limitations,   ''prevents    the    contingent   remainders   from    being   defeated    or 
destroyed." — Such  are  the  circumstances  which  appear  to  have  given  rise  to 
this  most  frequent  and  important  limitation,  and  the  effects  it  produced;  and 
thus  it  stands  with  respect  to  the  alienation  of  the  tenant  for  life  without  the 
concurrence  or  co-operation  of  the   trustees.     With   respect  to  those   cases, 
where  the  trustees  co-operate  in  the  alienation,  it  is  obvious  the  estate  of  these 
trustees  is  that  which  we  have  before  mentioned,  of  a  person  seised  of  a  life 
estate  in  trust  for  another;  and  conformably  to  what  we  have  before  observed 
upon  the  alienation  of  a  person  so  seised,  his  fine,  feoffment,  or  common  reco- 
very acquires  him  an  estate  by  disseisin,  and  vests  the  estate  so  acquired  by 
him  in  the  purchaser.     Here  then  the  privity  of  estate  fails:  but  courts  of 
equity  again  interfere.     This  alienation  of  the  trustees  is  evidently  a  breach  of 
their  tru^t.     If,  therefore,  the  conveyance  be  without  consideration,  and  with- 
out express  nitice,  the  court  implies  notice.     If  it  be  with  notice,  then,  whether 
with  or  without  consideration,  the  courts  make  the  purchaser  hold  the  lands 
upon  the  trusts  to  which  they  were  subject  in  the  hands  of  the  trustees.     But 
if  the  conveyance  is  for  a  valuable  consideration,  and  without  notice,  then  the 
courts  punish  the  breach  of  trust,  by  decreeing  them  to  purchase  lands  of  equal 
value  to  those,  of  which,  by  their  breach  of  trust,  they  have  deprived  the  par- 
ties, and  to  settle  them  to  the  uses  and  upon  the  trusts  of  the  lands  conveyed. 
See  Mansel  v.  Mansel,  2  Peere  Will.  G78.     Pye  v.  Gorge,  1  P.  AVms.  128. 
Moody   V.   Walters,   16  Ve.s.   283.   and   Mr.    Fearne's   f]ssay  on  Contingent 
Remainders,    G    ed.    326,    &c.     It    only   remains    to    observe,    that,    though 
the  destruction  of  contingent  remainders  by  the  trustee  is  punished  in  the 
manner  we  have  mentione^l;  still,  where  there  is  a  bare  tenant  for  life  for  his 
own  benefit,  with  remainders  over  in  contingency,  if  he  destroy  the  contingent 
remainders,  it  is  no  breach  of  trust,  for  where  there  is  no  trust  there  cannot 
be  a  breach  of  trust;  there  is  no  ground  consequently  for  a  court  of  equity  to 
interfere  in  that  case.     It  is  therefore  left  to  its  legal  consequences.     Titles 
however  depending  on  the  validity  of  an  act  of  this  nature  can  never  be  recom- 
mended.    The  power  of  tenant  for  life  to  destroy  contingent  remainders  is 
stricfissinii  juris.     It  certainly  therefore   can  never  expect  favour, — or^  any 
thing  beyond  mere   support.     In  Roake  v.   Kidd,  5  Ves.  647.  lord   Eldon 
appears  to  have  intimated  a  doubt,  whether  a  court  would  compel  a  ])urchaser 
to  accept  a  title  depending  on  the  destruction  of  contingent  remainders.     It  is 
to   be  observed,   that  it  has  not  yet  been  decided,  whether  a  legal  estate  of 
freehold  created  by  one  deed,  will  support  contingent  remainders  created  by 
another.     The  prevailing  opinion  appears  to  be,  that,  if  ever  this  point  should 
come  before  a  court,  the  decision  will  be  for  the  afiirmative.     It  sometimes 
happens  that  contingent  remainders  are  limited  to  the  sons  of  a  person  who  has 
himself  no  life  estate.     When  this  is  done,  it  is  proper  to  direct  in  what  man- 
ner the  rent  shall  be  applied,  during  the  suspense  of  a  contingent  remainder, 
and   the  vacancy  of  a  person   beneficially  entitled.     This  may  be  done  by 
directing  the  trustees,  during  the  vacancy  or  suspense,  to  pay  the  rents  to  the 
persons'next  entitled  for  the  time  being,  under  the  uses  or  trusts  of  the  instru- 
ment, to  a  vested  remainder  in  the  estates,  but  without  prejudice  to  the  estate 
of  the  children  afterwards  coming  in  existence.     If  no  such  direction  is  given, 
the  settler  and  his  heirs  would  probably  be  considered  as  entitled  to  the  then 
intermediate  profits,  as  an  undisposed  part  of  the  inheritance. 

V.  5.  The  Ji/th  and  uJtimate  stage  of  settlements  appears  to  have  been  eifected, 
by  the  introduction  of  powers  under  the  statute  of  uses.  By  these,  as  complete  a 

dominion 


200.  b.]  Of  Releases.     L.  3.  C.  8.  Sect.  504. 

domiuion  over  the  property  which  is  the  subject  of  the  settlement  is  given,  to 
the  party  and  his  trustees,  as  if  it  were  not  the  subject  of  settlement;  at  the 
sime  time  that  the  property  or  its  value  is  completely  secured  to  the  parties, 
to  their  issue,  and  to  all  other  claimants.  Considered  in  this  point  of  view,  the 
plan  and  effects  of  a  marriage  settlement,  as  such  settlements  are  now  usually 
framed  in  England,  are  very  striking;  and  will  bear  a  comparison  with  the 
marriage  contracts  of  any  other  country.  These,  generally  speaking,  either 
fetter  the  property  so  much  as  to  take  it  entirely  out  of  commerce,  as  is  done 
by  the  tailzies  of  Scotland  with  irritant  and  resolutive  clauses,  or  like  their 
settlements  of  what  is  called,  simple  destination,  leave  it  so  much  under  the 
control  and  direction  of  the  parents,  as  to  give  little  security  for  its  safe  trans- 
mission to  the  issue. 

YI.  TRUSTEES  EITHER  ARE  SUCH,  BY  THE  EXPRESS  OR 
IMPLIED  DECLARATION  OE  THE  PARTY,  OR  ARE  MADE 
scan  BY  A  COURT  OF  EQUITY— In  a  court  of  equity  it  is  sufficient 
that  the  trust  appears;  and  if  the  party  creating  the  trust  has  not  appointed  his 
own  trustee,  the  court  of  equity  will  follow  the  legal  estate,  and  decree  the  per- 
son in  whom  it  is  vested  to  execute  the  trust.  See  ant.  113,  note  2,  it  being  a 
rule  which  admits  of  no  exception,  that  a  court  of  equity  never  wants  a  trustee. 

YII.  ANOTHER  RILE  WHICH  ADMITS  OF  NO  EXCEPTION  IS 
Til  A  T  EQ  UITYA  CTS  UPON  THE  PERSON  AND  NO  T  UPON  THE 
THING.  The  consequence  is,  that,  if  the  estate,  of  which  the  party  is  actually 
seised,  is  not  commensurate  to  the  trust,  equity  cannot  enlarge  it.  Supposing 
therefore  ^1.  to  be  seised  of  an  estate  in  fee  simple,  in  trust  for  B.  and  his  heirs, 
and  that  A.  conveys  the  legal  estate  to  the  use  of  C.  for  life,  with  remainders 
over;  C.  and  the  remainder-men  would  be  trustees  for  B.;  and  B.  being  entitled 
to  the  whole  equitable  fee,  would  be  entitled  to  a  conveyance  of  it  to  him.  If, 
therefore,  the  modifications  of  the  legal  estate  be  such,  as  enable  parties  to  con- 
vey the  fee,  a  conveyance  must  be  made  by  the  same  means  as  if  it  were  a  con- 
veyance for  a  valuable  consideration.  Consequently,  if  any  of  the  parties  should 
be  seised  in  tail,  a  fine,  or  recovery,  as  the  case  happens,  would  be  necessary; 
and  if  the  tenant  in  tail  should  happen  to  be  an  infant,  the  infant  cannot  convey 
without  levying  a  fine  or  suffering  a  recovery.  The  stat.  7  Ann.  chap.  19.  au- 
thorizes infants  to  convoy  in  the  manner  therein  mentioned,  under  the  direction 
of  the  court  of  chancery.  This  has  been  held  to  extend  to  the  levying  fines 
and  suffering  recoveries,  where  the  nature  of  their  estates  have  required  these 
assurances,  to  perfect  the  conveyances.  See  3  Atkyns,  164.  479.  and  559. 
Com.  Rep.  G15.  Barnes,  217.  But  sometimes  the  modifications  of  the  legal 
estate  arj  such,  that  even  fines  and  recoveries  are  not  sufficient  to  convej-  a 
fee.  In  this  case  application  to  parliament  is  necessary.  In  the  case,  sug- 
gested in  the  preceding  part  of  this  annotation,  the  whole  fee  simple,  on  which 
the  trust  was  supposed  to  be  ingrafted,  is  considered  to  have  been  originally 
vested  in  the  trustees,  and  to  have  been  modified  by  them  into  uses  in  strict 
settlement:  but,  it  sometimes  happens,  that  the  laml  is  originally  limited  to  the 
use  of  trustees,  in  tail,  or  even  for  life,  with  remainders  over  in  strict  settlement, 
and  trusts  are  declared  of  these  uses.  As  where  land  is  limited  to  the  use  of 
A.  and  the  heirs  of  his  body,  in  trust  for  /.  S.  and  the  heirs  of  his  body;  or, 
where  land  is  limited  to  the  use  of  A.  B.  during  their  joint  lives,  and  after 
the  decease  of  such  one  of  them  as  shall  first  depart  this  life,  to  the  use  of  the 
survivor  and  his  heirs,  in  trust  for  /.  S.  and  the  heirs  of  his  body.  Instances  of 
such  limitations  and  trusts  have  occurred  in  practice.  As,  in  these  cases,  the 
legal  estate  is  not  commensurate  with  the  trust  charged  upon  it,  practitioners 
have  doubted  whether  I.  S.  has,  in  such,  that  kind  of  actual  equitable  estate 
tail,  which  enables  him  to  acquire  the  fee  simple  of  the  land  by  a  recovery. 
The  case  is  evidently  near,  when  the  seisin  to  the  uses  is  more  limited,  than  the 

uses 


L.  3.  C.  8.  Sect.  504.  Of  Eeleases.  [290.  b. 

uses  declared  of  it.  As,  where  a  feojfraent  is  luade  to  A.  and  the  heirs  of  his 
body,  to  the  use  of  /.  S.  and  the  heirs  of  his  body,  or  to  A.  and  B.  during 
their  joint  lives,  and  after  the  decease  of  such  one  of  them  as  shall  first  depart 
this  life,  to  the  survivor  of  them  and  the  heirs  of  the  survivor,  to  the  use  of  /. 
*S'.  and  the  heirs  of  his  body.  On  all  these  cases,  a  judicial  determination  is 
wanting. 

VIII.  It  is  sometimes  doubtful,  WIIE  TITER  AN  ESTATE  BE  LEGAL 
OR  EQUITABLE.     The  leadiug  authorities  upon  this  point,  are,  Burchett 
V.  Durdant,  2  Vent.   312.     Broughton  v.  Langley,  2  Sulk.  679.     Simsou  v. 
Turner,  1st  Equity  Cas.  Abr.  383.     Lady  Jones  v.  Lord  Say  and  Selc,  8  Vin. 
262,  Silvester  d.  Law  u.  Wilson,  2  Term  Rep.  444.  and  Thong  v.  Bedford,  1 
Bro.  Cha.  Cases,  313.     The  result  of  these  cases  seems  to  be,  1st,  That  a  de- 
vise to  A.  and  his  heirs,  in  trust  for  B.  and  his  heirs,  without  any  ulterior 
words,  is  an  use  executed  by  the  statute  in  B. — 2dly,  That  the  construction 
would  be  the  same,  if  lands  were  devised  to  A.  and  his  heirs,  in  trust  to  permit 
B.  and  his  heirs  to  receive   the  rents  and  profits. — 3dly,  That  a  devise  to  A. 
and  his  heirs,  with  directions  to  dispose  of  the  estate,  or  of  the  rents  in  such  a 
manner  as  necessarily  requires  the  legal  estate  should  reside  in  him,  will  of 
course  vest  the  legal  estate  in  him. — 4thly,  That  a  mere  devise  to  A.  and  his 
heirs,  upon  trust  to  receive  the  rents  and  pay  them  over  to  B.  should  give  the 
legal  estate  to  A.     To  this  the  case  of  Silvester  v.  Wilson  nearly  approaches. 
— 5thly,  That,  where  an  estate  is  given  to  A.  and  his  heirs,  upon  trust  to  dis- 
pose of  the  rents  in  a  particular  manner  during  the  life  of  B.  and  after  the 
decease  of  B.  to  stand  seised  of  the  lands  to  the  uses  therein  mentioned ;  there, 
as  the  nature  of  the  trust  docs  not  require  that  the  legal  estate  shall  reside  in 
A.  for  a  longer  term  than  the  life  of  B.  the  court  will  not  consider  the  use  to 
be  executed  in  him  for  a  longer  term  than  the  life  of  B. ;  but  will  consider  the 
use  as  executed  in  the  trustee  during  the  life  of  B.  and  afterwards  in  the  cestui/ 
que  use.     Lord  Say  and  Sole  v.  Lady  Jones,  3  Bro.  Par.  Ca.  458.     Pincke  v. 
Curteis,  4  Bro.  Ch.  Ca.  329. — 6thly,  And  that,  where  there  is  a  limitation  to 
one  for  life,  remainder  to  trustees  and   their  heirs  for  preserving  contingent 
remainders,  and  the  estate  of  the  trustees  is  not  restrained  to  the  life  of  the 
tenant  for  life :  in  a  deed  the  trustees  would  certainly  be  considered  as  taking 
the  whole  fee:  but  that,  in  a  will  as  the  nature  of  their  trust  requires  that  they 
should  take  the  legal  estate  only  during  the  life  of  the  tenant  for  life,  and  the 
subsequent  devise  is  generally  introduced  by  the  words,   ''and  after  the  death 
"  of  the  tenant  for  life,"  there  seems  reason  to  contend,  they  should  be  con- 
sidered as  taking  the  legal  estate  for  the  period  of  his  life  only  ;  that  being  evi- 
dently the  testator's  intcution,  which  in  wills  has  so  powerful  an  operation  in 
controlling  the  legal  operation  of  the  words.     See  Shapland  v.  Smith,  1  Bro. 
Ch.  Ca.  75.  and  Boteler  v.  Allington,  ibid.  72. 

IX.  There  is  a  disfitirtion  hetwcm ^iowcrs  and  trusts.  Devises  are  sometimes 
framed  in  such  a  manner,  as  to  make  it  uncertain  whether  the  legal  estate  is 
vested  by  them,  in  the  trustees,  upon  trust  to  dispose  of  it  according  to  the 
directions  of  the  testator,  or  whether  the  legal  estate  is  suftered  to  descend 
upon  the  heir  at  law,  or  is  devised  to  others,  with  a  power  to  tlie  persons  men- 
tioned for  that  purpose  by  the  testator,  to  dispose  of  it.  This  is  very  import- 
ant, and  sometimes  not  clearly  to  be  ascertained.  See  ante,  fo.  113.  a. 
note  2.  on  the  devise  of  an  estate  to  be  sold  by  executors  where  it  vests  the 
estate  in  the  executors,  and  where  it  merely  gives  a  power  to  sell  it.  It  is 
observable  that  where  there  is  a  devise  to  executors  to  sell,  the  statute  of 
21  H.  8.  makes  it  lawful  for  one  of  the  executors  to  sell  without  the  other; 
and  in  Bonifaut  v.  Greenfield,  Cro.  Eliz.  80.  it  was  decided,  that,  this  statute 
extends  equally  to  those  cases,  where  the  legal  estate  is  devised  to  the  exe- 
cutors, as  to  those,  where  a  mere  power  is  given  to  sell.    But  the  taking  of  the 

conveyance 


290.  b.]  Of  Eeleases.  L.  3.  C.  8.  Sect.  504. 

couveyance  from  one  executor  only,  is  liable  to  objections.  One  is,  that  the 
other  executor  may  have  previously  sold ;  in  which  case  the  first  vendee  would 
be  preferred.  The  other  arises,  where  the  will  expressly  requires  that  all  the 
trustees  should  join  in  the  receipt  for  the  purchase  money. 

X.  By  the  stat  29  Cha.  2.  cap.  3.  sect.  8.  it  is  provided,  "  That  all  dcclara- 
''  tions  and  creations  of  trust  in  lands  or  hered itaments  must  he  in  u-ritirxj, 
"  signed  by  the  party,  or  by  his  last  will  in  writing,  or  else  void,  except  trusts 
"  arising  by  implication  of  law,  and  transferred  and  extinguished  by  acts  of  law." 
A  person  purchasing  land  in  the  name  of  another,  has  always  been  held  to  be 
within  this  description  But  it  has  also  been  held,  that  this  implied  trust  may 
be  rebutted  by  circumstances  in  evidence;  and  therefore,  where  a  father  has 
purchased  in  the  namo  of  a  .son,  or  a  grandfather  in  the  name  of  a  grandson,  it 
has  often  been  held  to  be  intended  as  an  advancement  for  the  son  or  gi-andson, 
and  not  as  a  trust  for  the  purchaser.  This  construction  of  trusts  by  a  court  of 
equity,  is  conformable  to  the  construction  of  uses  by  the  courts  of  law.  There, 
a  feoffment  without  consideration,  when  no  use  was  declared,  was  always  held 
to  operate  to  the  use  of  the  feoffor.  But  when  it  was  to  a  son  or  grandson, 
the  consideration  of  blood  intervened,  and  it  was  held  to  operate  to  the  use  of 
the  son  or  grandson.  This  doctrine  is  often  resorted  to  in  the  case  of  grants 
of  copyholds  where  the  son  of  a  grantee  is  a  nominee.  There  the  implication 
in  favour  of  the  son  is  not  so  strong,  as  there  is  a  necessity  of  mentioning  some 
life,  for  the  purpose  of  filling  up  the  estate.  Yet  in  these  cases,  with  some  excep- 
tions, (see  particularly  Lane  v.  Dighton,  Amb.  409.)  it  is  considered  so  far  an 
advancement  for  the  child,  that  it  is  incumbent  on  the  person  claiming  against 
the  child  to  show  that  it  was  not  so  intended.  In  the  case  of  Dyer  and  Dyer, 
heard  in  the  exchequer,  Nov.  20,  21,  and  27, 1788,  this  doctrine  was  very  fully 
entered  into,  and  explained  with  the  greatest  learning  and  perspicuity,  by  the 
then  chief  baron  Eyre.     Watkins  on  Copyholds,  21G. 

XI.  The  favour  which  is  shown  to  old  tenants,  by  granting  them  a  renewal 
of  their  leases,  preferably  to  a  stranger,  has  given  them,  in  the  eye  of  the  law, 
an  interest  beyond  their  subsisting  term ;  and  this  interest  is  generally  termed 
their  tenant  right  of  renewal.  This  is  particularly  applicable  to  leases  from  the 
crown,  from  the  church,  from  colleges,  or  from  other  corporations.  In  these 
cases,  it  often  happens,  that  the  situation  of  the  parties  is  such,  that  there  are 
successive  renewals  of  the  lease,  or  successive  enlargements  of  it  by  reversionary 
grants.  On  one  hand,  the  property  is  more  valuable  to  tbe  actual  tenant  than 
any  other  person ;  he  can  therefore  afford  to  pay  more  for  the  renewal  than 
another.  On  the  other  hand,  there  is  a  natural  partiality  in  the  lessors  to  the 
present  tenants,  particularly  if  they,  or  the  persons  under  whom  they  claim, 
have  leng  been  tenants  of  the  land  in  question.  These  circumstances  have 
produced  what  is  called  tenant  right.  Attempts  have  been  made  to  establish 
an  obligation  in  landlords  to  renew,  but  they  have  not  succeeded.  The  renewal, 
therefore,  is  still  a  matter  of  favour  and  of  chance ;  but  is  so  far  valuable,  that 
it  enhances  the  price  of  the  property  on  sales ;  provisions  for  renewal  are  in- 
serted in  mortgages  and  settlements ;  and  the  right  of  parties  to  this  chance  of 
renewal  is  guarded  by  courts  of  equity.  In  mortgages  of  this  species  of  pro- 
perty, where  this  chance  of  renewal  exists,  there  should  always  be  inserted  in 
the  mortgage  deed  a  covenant  from  the  mortgagor  for  the  renewal  of  the  lease, 
and  for  vesting  such  new  lease  in  the  mortgagee  :  with  an  agreement,  that,  if  the 
mortgagor  neglects  to  renew,  it  shall  be  lawful  for  the  mortgagee  to  renew,  and 
that  the  fine  and  expenses  of  renewal  shall  be  a  charge  upon  the  premises,  and 
bear  interest.  In  settlements  also,  there  should  be  a  power  authorizing  the 
trustees,  from  time  to  time,  to  renew  the  leases,  and  for  that  purpose  to  raise 
money  by  mortgage.  But  particular  care  should  be  taken  to  insert,  in  all  settle- 
ments of  this  miture,  such   provisions,  as  will  free  the  trustees  from   personal 

liability, 


L.  3.  C.  8.  Sect.  504.        Of  Releases.  [290.  b. 

liability,  for  an  omission  to  renew,  unlesse  it  happens  by  a  defined  neglect  or 
default;  as,  without  such  a  provision,  the  trustees  will  be  considered  answer- 
able for  it,  as  for  a  breach  of  trust.  Lord  Montfort  v.  Lord  Cadogan,  17  Ves. 
485. 

Where  such  provisions  are  not  introduced,  an  opinion  prevailed,  in  conse- 
quence of  what  was  reported  to  have  been  said  by  Lord  Hardwicke,  in  Verney 
Qi.  Verney,  Amb.  S8.  that  the  tenant  for  life  should  pay  one  third  of  the  fine 
and  the  other  charges  attending  the  renewal,  or  keep  down  the  interest  of  them, 
and  the  residue  paid  by  the  person  in  remainder :  but  it  now  appears  to  be  set- 
tled that  the  tenant  for  life  must  contribute  beyond  the  interest,  in  the  propor- 
tion to  the  benefit  he  takes.  Nightingale  v.  Lawson,  1  Bro.  Ch.  C.  440.  and 
White  V.  White,  4  Ves.  33.  9  Ves.  554. 

As  to  the  protection  afforded  by  the  courts  of  equity  to  persons  entitled  to 
this  tenant  right,  courts  of  equity  have  so  far  recognized  the  tenant  right  to  be 
a  real  benefit,  and  as  such  entitled  to  their  protection,  as  to  decree,  that,  new 
or  reversionary  leases  (gained  by  undue  means  or  suppression  of  the  tenant 
right  of  renewal),  should  be  for  the  benefit  of  the  persons  interested  in  the 
ancient  leases ;  and  consequently,  that  those,  who  obtain  such  new  leases,  and 
were  thereby  legally  possessed  of  them,  should  be  trustees  for  that  purpose. 
The  cases  on  this  head  may  be  divided  into  three  classes.  The  first, — where 
the  renewal  has  been  obtained  by  persons  having  no  beneficial  interest  in  the 
old  lease,  and  no  connection  with  the  lessee,  and  has  been  obtained  by  a  sug- 
gestion of  what  was  false,  or  a  suppression  of  what  was  true.  The  second, — 
where  the  parties  obtaining  the  renewal  have  no  beneficial  interest,  but  are 
connected  with  the  old  lessee,  as  guardians,  trustees,  or  executors.  The  third, — 
where  the  persons  renewing  have  only  partial  and  limited  interests,  as  tenants 
for  life,  mortgagors  or  mortgagees.  In  all  these  cases,  the  parties  renewing 
have  been  uniformly  declared  trustees  for  the  persons  beneficially  interested,  in 
the  ancient  lease,  cither  wholly  or  in  part,  according  to  the  particular  circum- 
stances of.  the  case ;  the  court  presuming  that  the  new  lease  was  obtained  by 
means  of  the  connection  with  or  reference  to  the  interest  in  the  ancient  lease. 
The  cases  on  the  doctrine  of  the  tenant  right  of  renewal  are  numerous.  One 
of  the  most  important  of  them  is  that  of  Rawe  v.  Chichester,  Amb.  715. 
Another  very  important  case  on  this  learning,  is  that  of  Lee  v.  lord  Vernon, 
heard  on  appeal  to  the  house  of  lords,  11  May  1776,  7  Bro.  Par.  Ca.  432. 

XII.  It  frequently  happens,  that,  where  a  real  estate  is  limited  in  strict  settle- 
ment, and  a  leasehold  for  years  or  other  personal  estate  is  intended  to  he  settled 
upon  corresponding  trusts, — the  settlement  is  made  by  assigning  the  leasehold 
estate  to  trustees,  and  declaring  they  shall  stand  possessed  of  it,  upon  such 
trusts  as  are  previously  declared  of  the  real  estate,  or  as  near  thereto  as  may 
be,  or  as  the  rules  of  law  and  equity  will  permit.  This  should  never  be  done. 
The  nature  of  real  and  personal  estate  is  so  different,  as  to  make  it  almost  im- 
practicable to  frame  such  a  set  of  trusts  as  will  in  every  possible  event,  or  even 
in  the  common  contingencies,  carry  the  personal  estate  in  the  same  course  of 
devolution  as  that,  in  which  a  real  estate,  proposed  to  be  strictly  entailed,  is 
usually  settled ;  and  the  modes  of  doing  it  are  so  various,  that  hardly  two  pro- 
fessional men  would  agree  upon  the  same  plan.  The  best  method,  therefore, 
is,  to  insert  a  complete  set  of  limitations  for  the  personal  estate.  If,  however, 
from  the  smallness  of  the  property,  it  is  thought  advisable  to  do  it  by  way  of 
reference  to  the  limitations  of  the  real  estate,  a  declaration  may  be  inserted, 
expressing  that  tlie  leasehold  or  personal  estate  shall  not  vest  absolutely  in  any 
tenant  in  tail  taking  by  purchase,  who  shall  not  attain  the  age  of  21  yearg ; 
with  a  proviso,  that,  after  the  decease  of  the  preceding  tenant  for  life,  such 
infant  tenant  in  tail  for  the  time  being  shall  during  his  minority  be  entitled  to 
the  rents  and  interest.  The  nature  of  leasehold  for  lives  is  much  more  analo- 
gous to  that  of  estates  of  inheritance;  and  therefore,  generally  speaking,  may 

be 


290.  b.]  Of  Eeleases.      L.  3.  C.  8.  Sect.  504. 

be  settled  by  reference  to  previous  limitations  of  the  fee  simple  estate.  The 
short  mode  of  reference  may  be  used  in  the  power  of  sale  usually  inserted  in 
settlements,  where  the  parties  are  authorized  by  it  to  purchase  leaseholds  for 
years.  See  Foley  v.  Burnell,  1  Bro.  Cha.  Cases,  274 ; — and  D.  of  Newcastle 
V.  Lady  Lincoln,  3  Ves.  jun.  387. 

Xin.  It  was  observed  before,  that  one  of  the  principal  objects  of  the  legis- 
lature, in  passing  the  statute  of  uses,  was  to  restore,  in  some  measure,  the  no- 
toriety of  the  old  common  law  conveyances;  but  that  their  views,  in  this 
respect,  were  almost  totally  defeated,  by  the  introduction  of  conveyances  by 
lease  and  release,  and  by  the  preservation  of  uses,  under  the  appellation  of 
trusts  The  legislature  has,  at  difiercnt  times,  made  attempts  to  rertipxly  the 
mischief  arising  from  the  secret  transfer  of  in-operty  to  which  this  statute  has 
(jiven  rise. 

Among  these  attempts  may  be  reckoned  the  statutes  against  fraudulent  con- 
veyances and  devises,  13  Eliz.  c.  5.  27  Eliz.  c.  4.  and  3  W.  &  M.  c.  14.  but 
particularly  the  statute  of  29  Car.  2.  c.  3.  commonly  called  the  Statute  of 
Frauds  and  Perjuries,  which  provides  against  conveying  any  lands  or  heredita- 
ments for  more  than  three  years,  or  declaring  trusts  of  them,  otherwise  than 
by  writing.     See  ant.  48.  a.  note  3. 

With  the  same  views  have  been  passed  the  acts  for  registering  deeds  respect- 
ing lands  in  the  West,  East,  and  Ahrth  Ridings  of  the  county  of  York,  and  in 
the  county  of  Middlesex. — 2  &  3  Ann.  c.  4.  6  Ann.  c.  35.  7  Ann.  c.  20.  and 
8  Geo.  2.  c.  6. 

In  the  construction  of  the  29  Cha.  2.  c.  9.  the  courts  have  decided,  that  it 
was  made  with  a  design  to  prevent,  either  in  marriage  or  in  any  other  treaties, 
uncertainty,  perjury,  and  contrariety  of  evidence;  the  cases  not  liable  to  these 
inconveniencies  are  not  within  it.  See  1  Eq.  Ca.  Ab.  19.  The  courts  seem  to 
have  favoured  a  like  equitable  construction  of  the  statutes  for  the  registration 
of  deeds.  Thus  in  the  case  of  Le  Neve  v.  Le  Neve,  1  Ves.  64.  lord  Hard- 
wicke  decreed,  that,  if  a  deed  respecting  lands  in  any  of  the  register  counties 
is  not  registered,  and  afterwards  the  same  lands  are  sold  or  mortgaged,  by  a 
deed  properly  registered ;  if  the  person  claiming  under  the  second  deed  has 
notice  of  the  first  deed,  the  person  claiming  under  the  first  deed,  though  it  is 
not  registered,  shall  be  preferred  to  him. 

The  general  doctrine  of  these  decisions  is  founded  on  principles  both  just 
and  equitable,  when  applied  to  particular  cases  ;  yet  it  may  be  doubted,  whether 
a  more  rigid  adherence  to  the  letter  of  these  statutes,  particularly  that  of  the 
29  Car.  2,  c.  3.  would  have  been  more  beneficial  to  the  public.  The  French 
showed  a  much  more  rigid  and  pertinacious  adherence  to  the  letter  of  their  laws 
respecting  the  registration  of  deeds  and  wills.  By  laws  of  that  kingdom,  as 
ancient  as  the  16th  century,  particularly  an  ordonnance  of  Henry  II.  of  the 
year  1553,  it  was  ordered,  that  all  wills  and  deeds,  containing  substitutions  of 
estates,,  should  be  registered  within  a  particular  period  of  time.  If  they  were 
not  registered  within  that  time,  the  courts  seem  to  have  doubted  whether  they 
were  binding  even  on  the  parties,  in  whose  favour  the  substitutions  were  made; 
but,  it  was  always  settled,  that  the  substitutions  were  of  no  force  against  credi- 
tors or  purchasers.  Several  points  of  the  laws  respecting  substitutions  being 
unsettled,  and  the  laws  respecting  them  being  different  in  different  parts  of  the 
kino-dom,  they  were  all  reduced  into  one  law,  by  the  celebrated  ordonnance  of 
August  1747.  That  ordonnance  was  framed  by  the  chancellor  D'Aguesseau, 
after  taking  the  sentiments  of  every  parliament  in  the  kingdom  upon  forty-five 
different  questions  proposed  to  them  upon  the  subject.  The  thirty-ninth  ques- 
tion is,  "  Whether  a  creditor  or  purchaser,  having  notice  of  the  substitution 
<'  before  his  contract  or  purchase,  is  to  be  admitted  to  plead  the  want  of 
"registration?"  All  the  parliaments,  except  the  parliament  of  Flanders, 
agreed,  that  he  was;  that,  to  admit  the  contrary  doctrine  would  make  it  always 

open 


L.  3.  C.  8.  Sect.  504.       Of  Releases.  [290.  b. 

open  to  argument,  whether  the  party  had  or  had  not  notice  of  the  substitution; 
that  this  would  lead  to  endless  uncertainty,  confusion  and  perjury  ;  and  that  it 
was  much  better  that  the  right  of  the  subject  should  depend  upon  certain  and 
fixed  principles  of  law,  than  upon  rules  and  constructions  of  equity,  which  must 
be  arbitrary,  and  consequently  uncertain.  The  ordonnance  of  August  1747  was 
framed  accordingly.  Those  who  have  commented  upon  that  ordonnance  lay  it 
down  as  a  fixed  and  undeniable  principle,  that  nothing,  not  even  the  most 
actual  and  direct  notice,  countervails  the  want  of  registration ;  so  that  if  a 
person  be  a  witness,  or  even  a  party  to  the  deed  of  substitution,  still,  if  it  be 
not  registered,  he  may  safely  purchase  the  property  substituted,  or  lend  money 
upon  a  mortgage  of  it.  See  Questions  concernant  les  Substitutions.  Toulouse, 
1770;  and  C'omvientaire  de  V  Ordonnance  de  Louis  XV.  surles  Suhstitutionsixir 
Mr.  Furgole,  d  Paris,  1767. — The  same  principle  has  been  received  into  the 
Code  Civil  Napoleon.  The  article  1069  provides  that  "dispositions  by  gift  or 
"  will,  under  charge  of  restitution," — (that  is,  disposition  by  may  of  mortgage 
or  pledge) — "  shall,  at  the  instance  either  of  the  party  charged,  or  of  the 
"  trustee  appointed  for  the  execution,  be  made  public;  viz.  as  to  immovables, 
"  by  transcription  of  the  instrument  on  the  register  of  the  office  of  mortgages, 
"  of  the  place  where  they  are  situate ;  and  as  to  sums  placed  out,  with  privi- 
"  leges  over  immovables," — certain  legal  liens  on  land  to  which  the  law  of  France 
allows  a  privilege  of  priority — "  by  inscription  upon  the  property,  charged  with 
"  the  security." — The  article  1071,  provides  that  "  the  want  of  transcription 
'*  on  the  register  of  any  such  instrument,  cannot  he  supplied,  or  excused  by 
"  any  notice,  which  creditors  or  subsequent  purchasers  may  have  of  its  contents 
"  by  other  means  than  that  of  transcription  :"  and  the  article  1072  provides 
that  "  neither  donees,  or  legatees,  or  even  the  lawful  heirs  of  him,  who  makes 
"  the  disposition  contained  in  the  instrument,  neglected  to  be  transcribed,  nor 
"  the  donees,  legatees,  or  heirs  of  these,  can  enforce  their  titles  against  the  per- 
"  sons  entitled  in  default  of  transcription." 

XIV.  The  courts  have  in  part  remedied  the  mischief  arisin(y  from  the  admission 
of  trusts  with  respect  to  the  cestui/  que  trust,  hy  making  persons  paying  money  to 
trustees,  with  notice  of  the  trust,  answerahle,  in  some  cases,  for  the  jvo^jcr  aj^pU- 
eat'ion  of  it.  Lord  Mansfield  in  his  very  distinguished  argument  in  the  great 
case  of  Burgess  v.  Wheate,  1  Black.  Rep.  123.  observes  "that  the  cestuy  que 
"  trust  is  actually  and  absolutely  seised  of  the  freehold,  in  the  consideration  of 
"  a  court  of  equity;  that  the  trust  is  the  land,  in  that  court;  and  that  the 
"declaration  of  the  trust  is  the  disposition  of  the  land."  It  is  perhaps  to  be 
wished,  that  the  operation  and  consequences  of  trusts  had  been  confined  to  the 
trustee  and  cestuy  que  trust.  There  is  no  doubt  but  the  doctrine  in  ciuestion  is, 
in  many  instances,  of  great  service  to  the  cestuy  que  ti'ust,  as  it  pi-eserves  his 
property  from  the  peculations  and  other  disasters  to  which,  if  it  were  left  solely 
to  the  discretion  of  the  trustee,  it  would  necessarily  be  subject;  yet  it  may  bo 
questioned,  whether  the  admission  of  it  be  not,  in  general,  productive  of  more 
inconvenience  than  real  good.  To  prevent  this  inconvenience,  it  is  become 
usual  to  insert  a  clause  in  deeds  or  wills,  that  the  receipts  of  the  trustees  shall 
of  themselves  discharge  the  persons  to  whom  they  are  given,  from  the  obliga- 
tion of  seeing  to  the  application  of  the  money  paid  by  them.  In  some  instances, 
without  any  clause  of  this  nature,  a  person  paying  money  to  a  trustee  is  not 
answerable  for  the  misapplication  of  it,  though  he  has  notice  of  the  trust.  Per- 
haps the  following  distinctions  and  observations  will  be  found  of  use  towards  ob- 
taining an  accurate  knowledge  of  the  rules  of  equity  upon  this  complex  subject, 

XIV.  1.  With  regard  to  iiersonal  estate,  it  is  every  where  admitted,  that  if  a 
testator,  possessed  of  personal  estate,  dies  indebted,  having  by  his  will  directed 
his  estates  to  be  sold  for  the  payment  of  bis  debts  whether  he  specifies  them  or 
not,  the  mortgagee  or  jmreliaser  of  any  part  of  his  personal  assets  is  not  bound 
to  see  to  the  aplication  of  his  mortijaire,  or   purchase  money.     Sec  Elliott 

Vol.  II.— 29  "  "  and 


290.  b.]  Of  Eeleases.         L.  3.  C.  8.  Sect.  504. 

and  Merryinan,  Barnardiston's  Rep.  in  Cha.  page  78.  But  if  he  charges  a 
specific  part  of  liis  personalty  with  the  payment  of  a  spocitic  debt  or  legacy,  it 
seems  to  have  been  a  matter  of  doubt  how  far  the  purchaser  of  that  specific 
part  was  answerable.  In  the  case  of  Humble  v.  Bill,  2  Vern.  444.  the  master 
of  the  rolls  decreed  that  a  mortgagee  of  a  term  of  years  from  an  executor 
(which  term  of  years  was  specifically  bequeathed)  was  not  answerable  for  the 
misapplication  of  the  inortgage-money. — This  decree  was  reversed  in  the  house 
of  lords  in  1703-4,  1  Bro.  Par.  Cas.  71;  but  from  the  account  given  in  Viner, 
7  vol.  43.  pi.  13.  and  18  Viu.  121.  pi.  11.  there  is  reason  to  suppose  the  reversal 
was  founded  on  particular  proof  of  fraud.  Two  cases  in  Peere  William,  Ewer 
V.  Corbett,  and  Burting  v.  Stonard,  vol.  2.  p.  148.  and  150.  coincide  with  the 
master  of  the  Rolls  against  the  house  of  lords;  and  see  Gilbert's  Reports,  113. 
Mead  v.  lord  Orrery,  3  Atk.  235.  Ithell  v.  Beane,  1  Ves.  215.  It  should  how- 
ever, be  observed,  that  the  principle  on  which  the  courts  have  founded  their 
opinion,  that  the  purchaser  or  mortgagee  of  any  part  of  the  testator's  assets 
specifically  bequeathed  is  not  answerable  for  the  misapplication  of  his  pur- 
chase or  mortgage  money,  is,  that  the  whole  of  the  personal  estate  being- 
bound  to  pay  the  debts  of  the  testator,  that  specific  part,  (though  specificall}- 
bequeathed,)  is  liable  with  the  rest;  it  has  therefore  been  held,  that  the  pur- 
chaser must  not  have  notice  that  there  are  no  debts,  or  that  the  debts  are  paid. 
With  the  latter  doctrine  the  modern  practice  of  the  profession  accords.  The 
reason  of  those  cases  is,  that,  the  property  of  the  testator  vests  absolutely  in 
the  executor,  both  at  law  and  in  equity;  so  that  the  demand  of  the  creditors 
and  legatees  are  personal  upon  the  executor;  they  are  no  lien  upon  the  pro- 
perty in  his  hands,  or  in  the  hands  of  the  assignees,  from  him ;  the  executor  is 
intrusted  with  the  disposition  of  the  property;  and  no  third  person,  therefore, 
should  be  implicated  in  it.  It  seems  clear  from  Ewer  «.  Corbett,  that  though, 
by  such  notice  of  there  being  no  debts,  or  of  the  debts  being  paid,  the  pur- 
chaser makes  himself  answerable  for  his  purchase  or  mortgage  money ;  yet  he 
is  not  bound,  previously,  to  inquire  and  satisfy  himself,  that  there  are  debts 
unpaid,  or  that  the  parts  of  the  assets  not  specifically  bequeathed  are  suuicient 
to  pay  the  debts  and  legacies. 

XIV.  2.  With  respect  to  fhei?crise  of  a  real  estate  /or  the  jiaj/ment  of  debts ; 
It  must  first  be  observed,  on  the  authority  of  the  cases  of  Cutler  and  Coxeter, 
2  Vern.  302.  French  and  Chichester,  2  Vern.  508.  and  2.  Vos.  590.  that  if  a 
person  charges  both  his  real  and  personal  estates  with  the  payment  of  his 
debts,  the  personal  estate  must  be  first  applied  :  and  that  it  is  therefore  im- 
material whether  the  testator  charges  the  personal  estate  in  the  first  instance, 
or  not.  Now,  if  a  person  devises  a  real  estate  to  trustees  to  sell  for  the  pay- 
ment of  his  debts,  all  the  books  agree,  (see  particularly  the  cases  above  cited 
of  Elliott  V.  Merryman,  Spalding  and  Shalmer,  1  Vern.  301.  Culpepper  v. 
Aston,  2  Chan.  Cases,  115.  221.  1  Ves.  173.  and  215.  Cotterel  v.  Ilampson, 
2  Vern.  5.  Smith  v.  Guyon,  1  Bro.  Ca.  in  Cha.  180.)  that  if  the  debts  are 
specified  or  scheduled,  the  purchaser  or  mortgagee  is  bound  to  see  to  the  ap- 
plication of  his  money ;  but  that  if  they  are  not  specified  or  scheduled,  he  is 
not  bound  to  see  to  such  application. 

XIV.  3.  As  to  legacies — these,  from  their  nature,  must  be  considered  as  speci- 
fied or  scheduled  debts;  how  far,  in  those  cases,  where  the  trust  does  not  extend 
to  the  payment  of  debts,  the  purchaser  of  a  real  estate  is  bound  to  see  the 
money  applied  in  discharge  of  the  legacies,  is  often  a  subject  of  discussion  and 
doubt  even  with  the  most  experienced  practitioners.  But,  if  the  trust  is,  to 
sell  for  the  payment  both  of  debts  and  legacies,  then,  the  trust  to  pay  the  debts, 
intercepts  the  trust  to  pay  the  legacies,  and  as  the  purchaser  is  not  bound  to 
see  to  the  payment  of  the  former,  he  necessarily  is  not  bound  to  see  to  the 
payment  of  the  latter.  Thus  in  Jebb  v.  Abbott,  heard  in  chancery  on  the  9th 
February  1782,  lord  chancellor  Thurlow  said,  that  where  debts  and  legacies 
are  charged  on  lands,  the  purchaser  will  hold  free  from  the  claims  of  the 
legatees;  for  not  being  bound  to  see  to  the  di.scharge  of  debts,  he  cannot  be 

expected 


L.  3.  C.  8.  Sect.  504.        Of  Releases. [290.  b. 

expected  to  see  the  discharge  of  legacies,  which  cannot  be  paid  till  after  the 
debts.  Lord  Keuyon,  chief  justice  of  the  king's  bench,  who  was  counsel  in  the 
cause,  assented  to  this  position,  and  said  it  had  been  so  determined  b}'  lord 
Hardwicke.  Probably  the  case  alluded  to  by  him  was  that  of  Rogers  v.  Skilli- 
corne,  since  reported  by  Mr.  Ambler;  and  see  his  Rep.  fol.  188. — In  Benyon  v. 
Gollins,  in  the  sittings  after  Hilary  term,  1788,  the  testator  had  charged  his 
estate  with  the  payment  of  his  just  debts  generally,  and  with  a  legacy  of  800/^. 
for  his  daughter  for  life,  and  after  her  death  for  her  children.  The  trustee  had 
joined  in  a  conveyance  of  part  of  the  estate  to  a  purchaser,  and  permitted  the 
800/.  to  come  into  the  hands  of  the  daughter's  husband,  and  it  was  wasted.  The 
bill  was  brought  by  the  wife  and  children,  to  have  the  legacy  made  good  by  the 
purchasers  of  the  estate,  and  against  the  trustee.  It  was  dismissed  against  the 
purchasers.  Upon  the  hearing  for  further  directions,  it  was  pressed  by  Mr. 
Ambler,  that  the  trustee  should  pay  the  costs  of  the  purchasers.  But  lord 
Thurlow  refused  this,  saying,  that,  as  there  was  a  general  charge  of  debts,  the 
purchasers  were  not  liable  to  see  to  the  application  of  the  purchase  money  in 
payment  of  the  800/.  and  that,  if  the  plaintifi"  thought  fit  to  make  unnecessar}' 
parties,  the  trustees  ought  not  to  pay  the  costs  of  such  parties,  but  that  they 
must  receive  them  from  the  plaintiff. 

XIV.  4.  Lands  are  sometimes  devised  to  trustees,  upon  trust  to  raise  as  much 
monei/  as  the  personal  estate  shall /all  dejirient,  in  jjayimj  the  testator  s  debts  and 
legacies. — It  seems  to  be  the  general  opinion,  that  a  purchaser  or  mortgagee 
is  not  bound,  in  this  case,  to  inquire  whether  the  real  estate  is  wanted  or  not. 
Jt  is  a  nicer  case  where  the  lands  are  not  devised  to  the  trustees,  but  a  mere 
power  is  given  them  to  sell  for  the  purpose  of  raising  as  much  money  as  the 
personal  estate  shall  fall  short  in  paying.  To  the  valid  execution  of  such  a 
power,  the  deficiency  of  the  personal  estate  seems  to  be  a  requisite  circum- 
stance. It  may,  therefore,  be  contended,  that,  if  there  be  not  the  deficienc}- 
in  question,  the  power  is  not  well  executed,  and  a  necessary  consequence  of 
this  appears  to  be,  that,  if  the  purchaser  cannot  give  legal  evidence  of  this 
deficiency,  he  cannot  make  out  his  title  under  the  power.  To  prevent  questions 
of  this  nature  from  arising,  it  is  usual  to  insert  in  all  instruments  declaring 
trusts  of  personal  estate,  and  in  all  instruments  by  which  real  or  personal 
estates  are  vested  in  trustees,  upon  trust  to  raise  money  by  sale  or  mortgage, 
or  a  power  to  raise  money  for  any  purposes  is  given  them,  a  clause  expressly- 
discharging  the  purchasers  or  mortgagees,  from  the  obligation  of  ascertaining 
that  the  money  advanced  by  them  is  wanted  for  the  purposes  of  the  trust  or 
power.  A  clause  of  this  nature  should  seldom  be  omitted.  Where  the  trust 
or  power  is  to  raise,  by  sale  or  mortgage  of  the  real  estate,  so  much  money 
as  the  personal  estate  is  deficient  in  producing,  it  seems  advisable  to  extend 
this  clause  a  degree  farther,  by  expressly  discharging  the  purchaser  or  mort- 
gagee from  the  obligation  of  inquiring  whether  the  personal  estate  has  been 
got  in  and  applied,  and  by  expressly  authorizing  the  trustees  to  raise  any 
money  they  think  proper  by  sale  or  mortgage,  though  the  personal  estate  be 
not  actually  got  in  or  applied.  For  it  frequently  happens,  that,  the  getting  in 
of  the  personal  estate  is  attended  with  great  delay  and  difficulty  ;  during  which 
the  real  estate  cannot,  perhaps,  be  resorted  to.  This  will  be  obviated  effectually 
by  inserting  a  clause  to  the  above  effect.  It  should,  however,  be  accompanied 
with  a  further  direction,  that  so  much  of  the  personal  estate,  and  of  the  money 
raised  under  the  trust  or  power  as  shall  remain  after  answering  the  purposes  of 
the  trust,  shall  be  laid  out  in  land,  to  be  settled  on  the  devisees  of  the  real 
estates. 

XIV.  5.  \i^YQ(\\\(i\ii\y  \i?i-^T^c\i?,,  that  money  secxired uj)on  mortgages  ismadcthe 
subject  of  marriage  settlements,  and  assigned,  \ipon  various  trusts.  In  this  case, 
there  should  always  be  a  separate  deed,  by  which  the  mortgage  money  and  the 
estate  in  mortgage  should  be  assigned  to  the  trustees  of  the  settlement,  with  a 
declaration  that  their  receipt  for  the  mortgage  money  shall  be  a  discharge  to  the 

parties 


290.  b.]  Of  Eeleases.      L.  3.  C.  8.  Sect.  504. 

parties  paying  it.  la  making  the  assignment  by  a  separate  deed,  an  advan- 
tage is  given  to  the  mortgagor,  by  his  being  kept  from  being  implicated  with 
the  trusts  of  the  settlement,  and  by  having  that  deed  in  his  custody,  -which 
preserves  the  chain  of  the  title,  and  which  he  probably  otherwise  would  not 
have  :  an  advantage  also  is  given  to  the  persons  interested  in  the  settlement, 
from  having  the  contents  and  operation  of  the  settlement  kept  from  the  know- 
ledge of  the  mortgagor  and  those  claiming  under  him. — In  all  these  cases  it 
should  be  observed,  that  the  doctrines  of  equity,  with  respect  to  the  obligation 
of  seeing  to  the  application  of  money,  are  involved  in  many  nice  distinctions. 
Great  care  therefore  should  be  taken  to  prevent  any  questions  arising  upon 
them,  by  inserting  the  clauses  above  mentioned,  and  by  such  other  precautions 
as  the  circumstances  of  the  case  require,  Ou  the  general  doctrine  of  seeing  to 
the  application  of  purchase  money,  see  Mr.  Sugden's  chapter  on  that  subject, 
iu  his  Practical  Treatise  of  the  Law  of  Vendors  and  Purchasers. 

XV.  As  to  the  manner  in  which  courts  of  equity  have  attempted  topreventthe 
mischiefs  arising  from  the  admission  of  trusts,  with  respect  to  the  public  at 
larje. — This  has  been  effected  in  some  measure,  by  its  having  been  laid  down 
as  a  general  rule,  that  in  any  competition  of  claims,  where  the  equity  of  the 
parties  is  equal,  he  who  has  the  law  shall  prevail.  See  Francis's  Maxims  of 
Equity,  61.  If  a  person  has  the  legal  estate  or  interest  of  the  subject  matter 
in  contest,  he  must  necessarily  prevail  at  law  over  him  whose  right  is  only 
equitable,  and  therefore  not  even  noticed  by  the  courts  of  law.  This  advantage 
he  carries  with  him,  so  far,  even  into  a  court  of  equity,  that  if  the  equitable 
claims  of  the  parties  are  of  equal  force,  equity  will  leave  him  who  has  the  legal 
right  in  full  possession  of  it,  and  not  do  any  thing  to  reduce  him  to  an  equality 
with  the  other,  who  has  the  equitable  right  only.  Perhaps  the  following  illus- 
tration of  this  very  important  rule  of  equity,  by  an  inquiry  into  the  doctrines  of 
courts  of  equity  respecting  terms  of  years  attendant  upon  the  inheritance,  will 

not  be  unacceptable  to  the  reader. At  common  law,  leases  for  years  were 

not  supposed  to  transfer  any  property  to  the  lessee,  and  were  generally  of  very 
short  duration ;  for,  as  they  tended  to  deprive  the  crown  of  forfeitures,  and 
the  lord  of  the  fruits  of  his  tenures,  they  were  viewed  with  a  very  jealous  eye. 
Besides,  the  possession  of  the  lessee  was  considered  as  the  possession  of  the 
freeholder  ;  and  if  his  lease  was  defeated  or  disturbed,  though  he  could  recover 
for  damages,  he  had  no  means  to  recover  the  possession.  Moreover,  leases 
for  years  were  subject  to  be  absolutely  defeated,  either  by  a  real  or  fictitious 
recovery  against  the  freeholder ;  but  in  the  reign  of  Henry  IV.  or,  at  least,  ia 
that  of  Henry  VII.  the  courts  resolved,  that  the  lessee  should  not  only  recover 
damages,  as  recompense  for  the  loss  of  the  possession,  but  should  also  recover 
the  possession  itself.  Afterwards  the  21st  Hen.  8.  c.  15,  protected  the  lessee 
against  the  effect  of  fictitious  recoveries.  These  alterations  of  the  common 
law  gave  the  lessee  for  years  an  interest  and  stability  which  he  had  not  before. 
^till,  in  the  eye  of  the  law,  particularly  before  the  demolition  of  the  military 
tppnres,  terms  of  years  were  in  every  respect,  except  pecuniary  emolument, 
far  inferior  to  estates  of  freehold.  This  stability  on  the  one  hand,  and  subor- 
dinate state  of  property  on  the  other,  made  them  very  proper  and  convenient 
j)|odifications  of  property,  for  securing  money  or  any  other  charges  upon  the 
fee,  or  for  givir^g  a  partial  or  temporary  right  to  the  profits  or  beneficial  pro- 
perty of  the  land,  in  those  cases,  where  the  owner  wished  to  have  not  only  the 
remaiqder  or  reversion,  but  the  actual  freehold.  Hence  we  find  mortgages 
for  long  terms  of  years  very  frequent  in  the  reign  of  queen  Elizabeth.  Now, 
f^ccording  to  our  notions  of  mortgages,  if  the  mortgage  debt  is  not  paid  at  the 
thijc  appointed,  the  estate  mortgaged  is  absolutely  forfeited  to,  and  becomes 
the  property  of,  the  mortgagee,  at  law ;  but  courts  of  equity  permit  the  mort- 
gagor to  redeem,  on  payment  to  the  mortgagee  of  his  principal,  interest  and 
posts.  Still,  this  is  merely  a  right  in  equity,  the  legal  estate  continuing  in  the 

mortgag€<;. 


L.  3.  C.  8.  Sect.  504.       Of  Releases.  [290.  b. 

mortgagee.  Thus,  if  an  estate  be  demised  for  a  term  of  years,  with  a  proviso 
making  the  term  void  on  payment  of  a  sum  of  money  with  interest,  before  or 
upon  a  certain  day,  the  condition  is  not  considered,  at  law,  as  complied  with, 
unless  the  money  is  paid  on  or  before  that  very  day;  if  it  is  not  then  paid,  the 
estate  belongs  at  law  to  the  mortgagee,  for  the  remainder  of  the  term.  A 
court  of  equity  allows  the  mortgagor  to  redeem  it,  by  paying  the  principal, 
interest,  and  costs,  after  that  time.  But  this  subsequent  payment,  though  it 
give  the  mortgagor  the  equitable  right  to  the  estate,  does  not  affect  the  legal 
continuance  of  the  term.  In  this  respect,  our  law  differs  from  the  civil  law; 
in  which  a  mortgage  is  considered  only  as  an  accessary  of  the  debt ;  and  pay- 
ment at  any  time,  by  annulling  the  debt,  extinguishes  the  mortgage.  To 
apply  this  doctrine  to  terms  of  years.  After  payment  of  the  mortgage  debt, 
the  term  of  years,  for  which  the  mortgage  is  made,  is,  at  law,  in  the  mort- 
gagee :  but,  in  equity,  the  mortgagor  is  entitled  to  the  benefit  of  it.  By  an 
analogy  to  the  case  of  mortgages,  when  terms  of  years  are  created  for  securing 
the  payment  of  jointures,  portions  for  children,  or  for  any  other  purpose,  they 
do  not  determine,  without  a  special  provision  for  this  purpose,  by  the  perform- 
ance of  the  trusts  for  which  they  are  raised.  Thus,  in  all  these  cases,  the 
legal  interest  during  the  continuance  of  the  term,  is  in  the  trustee ;  but  the 
owner  of  the  fee  is  entitled  to  the  equitable  interest,  or  rather  to  all  the  benefit 
or  advantage  which  can  be  made  of  the  term  during  its  continuance.  As  the 
courts  of  common  law  held,  that  the  possession  of  the  lessee  for  years  was  the 
possession  of  the  owner  of  the  freehold,  courts  of  equity  held,  that  where  the 
'tenant  for  years  was  but  a  trustee  for  the  owner  of  the  inheritance,  he  should 
not  oust  his  cestui/  que  trust,  or  obstruct  him  in  doing  any  act  of  ownership,  or 
in  making  any  assurances  of  his  estate.  In  these  respects,  therefore,  the  term 
is  consolidated  with  the  inheritance.  It  follows  the  descent  to  the  heir,  and 
all  the  alienations  made  of  the  inheritance,  or  of  any  partial  estate  or  interest 
carved  out  of  it  by  deed,  by  will,  or  by  act  of  law.  Whitchurch  v.  Whitchurch, 
2  P.  W.  236.  9  Mod.  124.  Gilb.  Kep.  168.  Villiers  &  Villiers,  2  Atk.  71. 
Hoole  V.  Sales,  2  Wils.  329.  Groodtitle  on  the  demises  of  Norris  and  others 
V.  Morgan  and  David,  1  Term  Rep.  755.  Still,  though  the  trust  or  benefit  of 
the  term  is  annexed  to  the  inheritance,  the  legal  interest  of  the  term  remains 
distinct  and  separate  from  it  at  law,  and  the  whole  benefit  and  advantage  to  be 
made  of  the  term  arises  from  this  separation.  For,  if  two  persons,  or  more, 
have  claims  upon  the  iulieritance  under  different  titles,  a  term  of  years  attend- 
ant upon  it  is  still  so  distinct  from  it,  that,  if  any  one  of  them  obtains  an 
assignment  of  it,  then,  (unless  he  is  affected  by  any  of  the  circumstances  which 
equity  considers  as  fraudulent),  he  will  be  entitled,  both  at  law  and  in  equity, 
to  the  estate  for  the  whole  continuance  of  the  term,  to  the  utter  exclusion  of 
all  the  other  claimants.  This,  if  the  term  is  of  long  durati(m,  absolutely 
deprives  all  the  other  claimants  of  every  kind  of  benefit  «in  the  land.  Sup- 
posing, therefore,  ^-1.  purchases  an  estate,  which,  previous  to  his  purchase,  had 
been  sold,  mortgaged,  leased,  and  charged  with  every  kind  of  incumbrance  to 
which  real  property  is  subject;  in  this  case  A.  and  the  other  purchasers,  and 
all  the  incumbrancers,  have  equal  claims  upon  the  estate.  This  is  the  mean- 
ing of  the  expression,  that  their  equity  is  equal.  But,  if  there  is  a  term  of 
years  subsisting  in  the  estate,  which  was  created  prior  to  the  purchases,  mort- 
gages, or  other  incumbrances,  and  A.  procures  an  assignment  of  it  in  trust  for 
himself,  this  gives  him  the  legal  interest  in  the  lands  during  the  continuance 
of  the  term,  absolutely  discharged  from,  and  unaffected  by,  any  of  the  pur- 
chases, mortgages,  and  other  incumbrances,  subsequent  to  the  creation  of  the 
term,  but  prior  to  his  purchase.  This  is  the  meaning  of  the  expression  in 
assignments  of  terms,  that  they  are  to  protect  the  purchaser  from  all  mesne 
incumbrances.  But  it  is  to  be  observed,  that  A.  to  be  entitled  in  equity  to  the 
benefit  of  the  term,  must  have  all  the  following  requisites :  he  must  be  a  pur- 
chaser for  a  valuable  consideration ;  his  purchase  must  in  all  respects  be  a  fair 

purchase 


290.  b.]  Of  Releases.     L.  3.  C.  8.  Sect.  504. 

purchase,  and  free  from  every  kind  of  fraud ;  and,  at  the  time  of  his  purchase 
he  must  have  no  notice  of  the  prior  conveyance,  mortgage,  charge,  or  other 
incumbrance.  It  is  to  be  observed,  that  mortgagees,  lessees,  &c.  are  purcha- 
sers in  this  sense,  to  the  amount  of  their  several  charges,  interests,  or  rights. 
If  any  person  of  this  description,  unaffected  by  notice  or  fraud,  takes  a  defec- 
tive conveyance  or  assignment  of  the  fee,  or  of  any  estate  carved  out  of  it, 
defective  either  by  reason  of  some  prior  conveyance,  or  of  some  prior  charge 
or  incumbrance ;  and  if  he  also  takes  an  assignment  of  a  term  to  a  trustee  for 
himself,  or  to  himself,  where  he  takes  the  conveyance  of  the  inheritance  to  his 
trustee;  in  each  of  these  cases  he  is  entitled  to  the  full  benefit  of  the  term; 
that  is,  he  may  use  the  legal  estate  of  the  term  to  defend  his  possession  during 
the  continuance  of  the  term,  or,  if  he  has  lost  the  possession,  to  recover  it  at 
common  law,  in  preference  to  all  claimants  prior  to  his  purchase,  but  subsequent 
to  his  term.  All  this  was  laid  down  and  explained  by  lord  Hardwicke,  in  the 
case  of  Willoughby  and  Willoughby,  in  Cha.  Trin.  30  Geo.  2.  1756.  1  Term 
Rep.  763.  Upon  the  same  principles  was  decided  the  case  of  Stanhope  v.  earl 
Verney,  before  lord  Northington,  in  chancery,  July  27,  1761.  The  case  there 
was,  that  Henry  Sayer,  being  seised  in  fee  of  certain  estates  subject  to  an  out- 
standing term  of  years,  in  Rigby  and  Eyre,  by  indentures  of  lease  and  release, 
bearing  date  the  4th  and  5th  days  of  June  1732,  conveyed  them  to  lady  Dy- 
sart  and  her  heirs,  for  securing  the  payment  of  1,000/.  and  interest,  and  cove- 
nanted to  produce  the  deeds  respecting  the  term  of  years.  Afterwards  Rigby 
and  Eyre  assigned  the  term  to  Cunningham  and  Clayton  in  trust  for  Sayer,  his 
heirs  and  assigns;  and  then  Sayer,  by  indenture  dated  the  19th  day  of  Dec. 
1732,  conveyed  the  same  estates  to  Mrs.  Nash  (under  whom  lord  Verney 
claimed)  by  way  of  mortgage,  for  securing  to  her  3,000/.  and  interest,  with  a 
declaration  that  Cunningham  and  Clayton  should  stand  possessed  of  the  term 
in  trust  for  her,  and  the  deeds  respecting  it  were  delivered  to  her,  and  neither 
she  nor  the  trustees  had  notice  of  the  mortgage  to  lady  Dysart.  Lady  Dysart 
brought  an  ejectment;  lord  Verney  defended,  and  set  up  the  term,  with  a 
declaration  of  the  trust  of  it  in  favour  of  Mrs.  Nash,  under  whom  he  claimed. 
Upon  this  lady  Dysart  brought  her  bill  in  equity.  The  question  was,  which 
should  be  preferred  ?  Lady  Dysart,  who  had  the  first  declaration  of  the  trust 
of  the  term,  or  lord  Verney,  who  had  the  subsequent  declaration  of  the  trust, 
but  had  the  custody  of  the  deed. — Lord  Northington  held,  that  a  declaration 
of  trust  in  favour  of  an  incumbrancer,  was  tantamount  to  an  actual  assignment, 
unless  a  subsequent  incumbrancer,  hand  fide,  and  without  notice,  procured  an 
assignment;  and  that  the  custody  of  the  deeds  respecting  the  term,  with  a 
declaration  of  the  trust  of  it  in  favour  of  a  second  incumbrancer,  was  equiva- 
lent to  an  actual  assignment;  and  therefore  gave  him  an  advantage  over  the 
first  idcumbrancer,  which  equity  would  not  take  from  him. — The  protection 
afforded  by  terms  of  years,  against  what  are  called  mesne  incumbrances,  makes 
it  safe,  in  some  cases,  to  dispense  with  a  search,  for  Jurlt/ments.  Rut  this  is 
seldom  prudent;  and  never  practised  where  there  is  the  slightest  reason  to 
apprehend  that  notice  of  them  will  be  proved,  or  attempted  to  be  proved,  on 
the  party  or  any  of  his  agents  in  the  business.  Resides,  no  term  or  other  out- 
standing estate  should  be  relied  on,  unless  proof  can  be  obtained  easily  and  at 
a  small  expense,  of  the  instruments  and  acts  in  law,  which  must  be  proved  to 
establish  the  creation  and  deduction  of  the  term.  It  must  be  added,  that, 
since  the  case  of  the  King  v.  Smith,  Exc.  2d  March  1804,  Svg<h'us  Law  of 
Vendors  and  Purchasers,  Appendix,  No.  15,  no  outstanding  estate  or  interest 
can  be  considered  a  protection  against  debts  due  to  the  crown. 

When  in  the  acceptance  of  a  title  an  outstanding  estate  or  interest  is  relied 
on  for  its  security,  it  should  be  ascertained  that  the  estate  or  interest  is  such 
as  will  enable  the  party  to  enforce  or  support  his  title  by  it,  in  ejectment. 
This  does  not  always  appear  sufficiently  attended  to.     Generally  speaking,  it  is 

true. 


L.  3.  C.  8.  Sect.  504.      Of  Keleases.  [290.  b. 

true,  that  the  possession  of  the  cestui/  que  trust  is  the  possession  of  the  trustee. 
But  it  is  equally  true,  that  the  extent  and  application  of  this  rule  are  by  n' 
means  settled.  Great  care,  therefore,  should  be  taken,  in  these  cases,  whci 
the  outstanding  estate  is  relied  on  as  a  protection  against  mesne  incumbrances, 
that  the  possession  of  the  actual  terre-tenants  has  not  been  such  as  to  deprive 
the  persons,  in  whom  the  outstanding  estate  or  interest  is  vested,  of  their  entry. 
— Great  care  also  should  be  taken  to  ascertain,  that  the  party  seeking  the 
benefit  of  the  outstanding  estate  or  interest  is  furnished  with  satisfactory  evi- 
dence to  show  that  it  comprises  the  property  for  the  defence  of  which  he 
wants  it. 

The  advantages  to  be  derived  from  terms  of  years,  being  so  considerable,  it 
is  an  object  of  great  consequence  to  ascertain,  when  it  is  so  fe  for  the  purchaser 
to  leave  them  in  the  trustee  in  whom  he  finds  them,  and  when  it  is  necessary  or 
prudential  to  require  them  to  be  assigned  to  a  trustee  of  his  own. — But  it  is 
more  easy  to  say  where  it  is  unsafe,  than  to  say  where  it  is  safe,  for  him  to  be 
satisfied  without  such  an  assignment  of  it. — Isf,  It  may  be  laid  down,  as  a 
general  rule,  that  whenever  a  term  has  been  raised  for  securing  the  payment 
of  money,  as  the  assignment  of  it  by  the  trustee  for  the  person  entitled  to 
receive,  to  a  trustee  for  the  person  obliged  to  pay,  the  money,  is  the  best 
possible  evidence  of  the  payment  of  the  money,  it  may  be  reasonably  required 
as  such. — ~dl^,  In  case  a  term  of  years  has  been  assigned  to  attend  the  inhe- 
ritance, if,  upon  a  purchase  (taking  it  in  the  above  extensive  sense)  all  the 
deeds  (as  well  originals  as  counterparts)  by  which  the  term  was  created  or 
Assigned,  are  delivered  to  the  purchaser,  and  he  is  satisfied,  that  the  trustee, 
in  whom  it  is  then  said  to  be  vested,  has  made  no  prior  assignment  of  it,  and 
that  the  vendor  has  not  charged  the  estate  with  any  intermediate  incumbrance; 
it  is  diflacult  to  say  what  possible  use  can  be  made  of  the  term  against  him,  or 
what  good  can  be  answered  by  requiring  the  assignment  of  it  to  a  trustee  of  his 
own,  unless  it  be  to  satisfy  the  requisitions  of  those  to  whom  he  may  after- 
wards have  occasion  to  mortgage  or  sell  the  estate. — 3(%,  But  if  any  of  the 
deeds  respecting  the  terme  are  not  delivered  to  the  purchaser,  or  if  he  is  not 
satisfied  of  the  trustee's  not  having  previously  assigned  it,  or  of  the  vendor's 
having  made  no  intermediate  incumbrance ;  it  seems  prudent  to  require  an 
actual  assignment  of  it  to  a  trustee  for  him. — Few  general  rules,  besides  these, 
can  be  laid  down  upon  this  subject  : — and  these  must  from  their  nature  be 
subject  to  an  endless  variety  of  modifications.  In  all  cases  of  this  description, 
it  is  infinitely  better  to  err  by  an  excess  of  care,  than  to  trust  any  thing  to 
liazard.  There  is  no  doubt  but  the  precautions  used  for  the  security  of  pur- 
chasers appear  sometimes  to  be  excessive;  and  satisfactory  reasons  cannot 
always  be  given  for  requiring  some  of  them  ;  yet  the  more  a  person's  expe- 
rience increases,  the  more  he  feels  the  reason  and  the  real  utility  of  them  ;  and 
the  more  he  will  be  convinced  that  very  few  of  the  precautions  required  by  the 
general  practice  of  the  Profession  are  without  their  use,  or  can  be  safely  dis- 
pensed with. — On  the  protection  aflPorded  to  purchasers  by  terms  for  years 
and  other  outstanding  estates,  .see  IGth  chapter  of  Mr.  Sugden's  Treatise  of 
the  Law  of  Vendors  and  Purchasers. 

XVI.  It  is  to  be  observed,  that,  in  most  cases,  particularly  those  which 
relate  to  real  property,  courts  of  equity  have  generally  endeavoured,  that  their 
decisions  should  bear  the  strictest  possible  audio;/?/  to  the  decision  of  courts 
of  law,  in  cases  of  a  similar  or  corresponding  impres.sion.  All  the  canons  of 
law  respecting  the  descent  or  inheritance  of  legal  estates  in  lands,  have  been 
applied  to  trust  or  equitable  estates,  k^^ome  of  these,  as  the  exclusion  of  the 
balf  blood,  of  the  ascending  line,  of  the  paternal  line  from  the  maternal  inhe- 
ritance, and  the  maternal  line  from  the  paternal  inheritance,  are,  evidently, 
of  feudal  extraction,  and  are  generally  supposed  to  be  contrary  to  reason  and 
equity  :  yet  they  have  been  admitted,  without  any  limitation,  in  the  equitable 

code 


290.  b.]  Of  Eeleases.     L.  3.  C.  8.  Sect.  504. 

code  of  England.  There  is  the  same  division  in  equity,  as  there  is  at  law,  of 
estates  of  freehold  and  inheritance,  of  estates  of  freehold  only,  and  of  estates 
less  than  freehold  j  of  estates  in  possession,  remainder  or  reversion,  and  of 
estates  several  and  estates  undivided.  It  has  been  observed  before,  that  every 
species  of  property  is  in  substance  equally  capable  of  being  settled  in  the  way 
of  entail;  and  that  the  utmost  term  allowed  for  the  suspense  either  of  real 
or  personal  property  from  vesting  absolutely,  is  that  of  a  life  or  lives  in  being, 
and  twenty-one  yeares  after,  and  perhaps  in. the  case  of  a  posthumous  child  a 
few  months  more.  The  analogy  between  law  and  equity  is,  in  this  instance, 
complete.  It  may  be  laid  down,  without  any  qualification,  that,  no  nearer 
approach  to  a  perpetuity,  can  be  made  through  the  medium  of  a  trust,  or  will 
be  supported  by  a  court  of  equity,  than  can  be  made  by  legal  conveyances  of 
legal  estates  or  interests,  or  will  be  admitted  in  a  court  of  law. — In  these 
leading  rules,  we  find  the  analogy  holds.  In  some  instances,  it  fails.  Curtesy 
has  been  admitted, — Dower,  though  a  more  favoured  claim,  has  been  refused, 
in  equitable  estates.  An  equitable  estate  is,  by  its  nature,  incapable  of  livery 
of  seisin,  and  of  every  form  of  conveyance  which  operates  by  the  statutes  of 
uses.  In  the  transfer,  therefore,  of  equitable  estates,  these  forms  of  con- 
veyance has  been  dispensed  with,  and  a  mere  declaration  of  trust  in  favour 
of  another,  has  been  held  sufficient  to  transfer  to  him  the  equitable  fee. — On 
the  other  hand,  trust  estates,  are,  by  their  nature,  equally  incapable  of  the 
process  of  fines  or  recoveries.  Yet  fines  are  levied  and  recoveries  are  suffered 
of  them  ;  and  fines  and  recoveries  are  as  necessary  to  bar  entails  of  equitable 
estates,  as  they  are  to  bar  entails  of  legal  estates.  In  the  case  of  a  feme 
inheretrix,  law  and  equity  agree  in  vesting  the  fee  in  the  husband  in  her  right, 
during  their  joint  lives,  and  subject  to  that,  in  preserving  it  to  the  wife  :  where 
the  feme  is  possessed  of  personal  property,  the  law,  speaking  generally,  vests 
it  absolutely  in  the  husband,  or,  at  least,  gives  him  the  power  of  acquiring  the 
absolute  property  of  it.  Courts  of  equity  have,  in  many  cases,  abridged  the 
right  of  the  husband  to  the  personal  property  of  the  wife,  and  qualified  his 
power  of  it. — In  fixing  the  term  for  the  redemption  of  mortgages,  and  in 
many  other  cases,  an  analogy  to  the  term  for  bringing  ejectments,  has,  fre- 
quently influenced  the  decisions  of  the  courts;  in  other  cases,  an  analogy  to 
the  term  for  bringing  ejectments,  or  the  terms  for  bringing  other  writs,  has  not 
been  attended  to ;  and  in  some  instances,  the  courts  have  not  considered  them- 
selves bound,  even  by  the  statutes  of  limitation.  Smith  v.  Clay,  Ambl.  645.3  Bro. 
Cha.  Rt'p.  639.  note. — But  the  cases,  where  the  analogy  fails,  are  not  numerous  ; 
and  there  scarcely  is  a  rule  of  law  or  equity,  of  a  more  ancient  origin,  or  which 
admits  of  fewer  exceptions,  than  the  rule,  that  equity  followeth  the  law. 

XVII.  In  one  instance,  however,  and  that  of  a  remarkable  nature,  this 
analogy  has  been  altogether  abandoned.  In  the  English  law  of  tenure,  it  is  a 
fundamental  rule,  and  a  rule  which  admits  of  no  exception,  that  the  freehold 
shall  never  be  in  abeyance.  In  all  the  innovations,  introduced  into  the  law  of 
real  property  by  the  statute  of  uses,  this  rule  has  been  retained:  so  that,  at 
this  day,  it  still  is  an  invariable  rule,  that  under  every  legal  modification  of 
landed  property,  an  actual  legal  estate  of  freehold  must  subsist  in  some  person. 
By  the  introduction  o^  truMs  of  accumulation,  this  rule,  in  respect  to  trust  or 
equitable  estates,  has  been  wholly  rejected.  When  such  a  trust  came  first 
under  the  consideration  of  courts  of  equity,  it  might  perhaps  have  been  thought 
to  deserve  consideration,  whether,  both  in  theory  and  practice,  it  would  not 
be  advisable  to  apply  this  rule  to  the  equitable  estates  ;  and,  on  this  ground  to 
consider  it  essential  to  a  modification  of  equitable  property,  that  there  should 
always  be  some  person  actually  entitled,  either  during  his  own  life,  or  the  life 
of  another,  or  for  a  larger  estate,  to  the  rents  and  income,  or  enjoyment  of 
the  estate,  for  his  own  benefit.  A  contrary  rule  was  admitted  into  the  equit- 
able code ;  and,  iu  consequence  of  it,  the  courts  held,  that  during  the  term, 

which 


L.  3*C.  a  Sect.  505.       Of  Eeleases.  [290. b. 291.  a. 


Sect.  505. 

^  UT  if  after  the  yeare  and  day  the  plaintife  will  sue  a  scire  facias,  to 
know  if  the  defendant  can  say  a7iy  thing  zvliy  the  plaintife  should  not 
have  execution  (Mcd  si  apres  Fan  ct  jour  le  plaintife  voit  suer  un  scire 
facias,  *  a  sacher  si  le  defendant  poit  rien  dire  pur  que  le  plaintife 
n'avera  execution),  then  it  seemeth  that  such  release  of  all  actions  shall  he 
a  good  plea  in  harre.  But  to  some  seems  the  contrary,  in  as  much  as  the 
writ  of  scire  facias  is  a  writ  of  execution,  and  is  to  have  execution,  ^c. 
But  yet  in  as  niuch  as  iqjon  the  same  writ  the  defendant  may  plead  divers 
matters  after  judgment  given  to  oust  him  of  execution,  as  outlawry,  ^c. 
and  divers  other  matters,  this  may  bee  well  said  an  action  (Mes  uncore 
entant  que  sur  mesrae  le  briefe  le  defendant  poit  pleader  divers  matters 
puis  le  judgement  rendue  de  luy  ouster  d'execution,  come  utlagary, 
t  &c.  et  divers  auters  matters,  %  ceo  bien  poit  estre  dit  action),  ^c. 

''  gC IRE  facias."  This  is  a  judiciall  writ,  and  properly  lyeth 
after  the  yeare  aud  day  after  judgement  given,  and  is  so 
called,  because  the  words  of  the  writ  to  the  sherife  bee,  quod 
scire  facias praf at'  T.  (being  the  defendant)  ywo(7si«  coram,  &c.  (c^o.  Car  240 
ostcnsurussi  quid  ])ro  se  habeat  ant  discere  sciat,  quare&c.  So  as  255.328.) 
by  the  writ  it  appeareth,  that  the  defendant  is  to  be  warned  to 
plead  any  matter  in  barre  of  execution;  and  therefore  albeit  it 
be  a  judiciall  writ,  yet  because  the  defendant  may  thereupon 
pleade  this  scire  facias  is  accounted  in  law  to  bee  in  nature  of  an 
action;  and  therefore  [/i]  a  release  of  all  actions  is  a  good  barre 

of  the  same,  and  likewise  a  release  of  executions  is  a  Ss-'e^J^V^"  ^' 
r  Q91.1  good  barre  in  a  scire  facias.  This  writ  was  JB^=  given  (8  Rep.'l52.) 
L     a.     J  in  this  case  by  the  statute  of  W.  2,  for  at  the  com-  (Doc.  Pla.  330.) 

man  law,  if  the  plaintife  had  surceased  to  sue  execu-  ^y'^'  "^ctib^'^ 
tion  hy  fieri  facias,  or  levari  facias,  a  yeare  and  a  day,  hee  had  8.  E.  3!  297.  298. 
been  driven  to  his  new  originall.  18  E.  3.  33. 

Lib.  3.  fol.  12. 
sir  William  Herbert's  case.     Fleta,  li.  2.  cap  12. 

"This 

*  a  sacher  si  le  defendant  poit  rien         f  &c.  not  in  L.  M.  or  Roh. 
dire  pur  que   le   plaintifs  n'avera,—         I  et  pur  added  in  L.  and  31.  and 
d'aver,  L.  and  M.  and  Roh.  Roh. 


which  the  law  allows  for  the  estate  to  be  suspended  from  vesting  absolutely, 
iu  some  person,  a  dry  accumulation  might  be  carried  on,  either  for  the  benefit 
of  the  person  in  whom  the  estate  is  to  vest  at  the  expiration  of  the  term  of 
suspense,  or  for  the  benefit  of  some  person,  answering,  at  that  time,  a  par- 
ticular description.  The  discussions  on  the  will  of  the  late  Mr.  Thellusson 
showed  the  inconvenience  of  the  rule,  and  the  enormous  lengths  to  which  it 
might  be  carried.  They  gave  rise  to  the  39  and  40  of  h?s  late  majesty, 
"for  restraining  all  trusts  and  directions  in  deeds  or  wills,  whereby  the  profits 
''or  produce  of  real  or  personal  estate  shall  be  accumulated,  and  the  bene- 
"ficial  enjoyment  of  it  protracted  beyond  the  time  therein   limited."     See 

]Mr.  Fearne's  Essay  on  Contingent  Remainders,  p.  434,  note  2 ;  p.  537,  n  1 

[Note  249.]  r         ;  ;  r         ?        • 


291.  a.]  Of  Keleases.         L.  3.  C.  8.  Sect.  506, 507. 

"  This  inay  hee  xceU  said  an  action."  Here  is  to  be  observed, 
that  every  writ  whereunto  the  defendant  may  plead,  be  it  ori- 
giuall  or  judiciall,  is  in  law  an  action. 


Sect.  506. 

A  ND  I  take  it  that,  in  a  scire  facias  upon  a  fine,  a  release  of  all  man- 
ner of  actions  is  a  good  plea  in  a  harre. 

This  upon  that  which  hath  been  said,  is  evident  of  it  selfe. 


Sect.  507. 


B 


UT  where  a  man  recovereth  debt  or  damages,  and  it  is  agreed  be- 
tween them  that  the  plaint  if e  shall  not  sue  execution  (et  est  accorde 
perenter  eux  que  le  plaintife  f  ne  suera  execution),  then  it  hehoveth 
that  the  plaintife  make  a  release  to  him  of  all  manner  of  executions  %• 

<'  TT  hehoveth."     Albeit  Lit'leton  here  said,  hee  ought  or  must, 
&c.  yet  there  bee  other  words  which  will  release  an  execu- 
tion without  express  words  of  a  release  of  execution. 
19  II.  6.  4.  As  if  a  man  release  all  suits,  the  execution  is  gone;  for  no 

26  H.  6.  E.xecu-  man  can  have  execution  without  prayer  and  suit,  but  the  king 
tion,  7.  Li.  8.        only;  and  therefore  if  the  king  releuseth  all  suits,  it  is  no  barre 

10.  153.  Ld.  „  y.'  .  ,  .        ,°  ,  .       ,  1-1  1 

Althiim's  cu.se.      01  "IS  execution,  because  in  the  king  s  case  the  judges  ought  to 

Vul.  Brooke,  tit.  award  execution  ex  officio  without  any  suit;  but  a  release  of 

Keleases,  87.        executions  doth  barre  the  king  in  that  case.     And  so  note  a 

diversity  between  a  release  of  all  actions,  and  a  release  of  all 

suites. 

So  if  the  body  of  a  man  be  taken  in  execution,  and  the  plain- 

26  II.  6.  tit.         ^.jfg  releaseth  all  actions,  yet  shall  he  remaine  in  execution;  but 

'   *       if  he  release  all  debts  or  duties,  he  is  to  be  discharged  of  the 

execution,  because  the  debt  or  duty  it  selfe  is  discharged. 

„„  ,         J,  In  the  same  manner  if  execution  be  sued  upon  a  recognizance 

20Ass.  p.  7.  ,         ,      .  ,     .  Ill         1  IP  I        •/.    1 

(6  Rep.  13.  b.)      I^y  cicijit  and  the  conusee  by  deocl  make  a  deteasance,  that  it  the 

(10  Hep.  47.)        conusor  doth  such  an  act,  that  then  the  recognizance  shall  be 
voide;  by  this  the  execution  is  discharged. 

So  it  is  if  judgment  be  given  in  an  action  of  debt,  and  the 
26  H.  6.  ubi  body  of  the  defendant  is  taki^n  in  execution  by  a  capias  ad  satis- 
^"P""**  faciendum,  and  after  the  plaintife  releaseth  the  judgment,  by 

this  the  body  shall  be  discharged  of  the  executicjn. 

If  the  plaintife  after  judgement  release  all  demands,  the  exe- 
cution is  discharged,  as  shall  appeare  by  that  which  next  here- 
after shall  be  said. 

If  A.  be  accountable  to  B.  and  B.  releaseth  him  all  his  duties, 
20  H.  6.  6.  this  is  no  baiTe  in  an  action  of  account,  for  duties  extend   to 

per  Pastor.  things 

f  ne  suera  execution — serroit  ouste         |  &c.  added  in  L.  and  M. 
d' action,  L.  and  M.  and  Roh. 


L.  3.  C.  8.  Sect.  508.       Of  IMeases.         [291.  a.  291.  b. 

things  ccrtaine,  and  what  shall  fall  out  upon  the  account  is 
incertaine;  and  albeit  the  Latine  word  is  dcbita,  yet  duties  doe 
extend  to  all  things  due  that  are  certaine,  and  therefore  dis- 
chargeth  judgements  in  personall  actions,  and  executions  also. 

poi.n  B^  Sect.  508. 

A  LSO,  if  a  man  release  to  another  all  maner  of  demands,  this  is  the 
best  release  to  him  to  whom  the  release  is  made,  that  he  can  have, 
and  shall  enure  most  to  his  advantage  (si  home  relessa  a  un  auter  touts 
manners  *  de  demands,  ceo  est  le  plus  melior  release  f  a  luy  a  que  le 
release  est  fait,  %  H"g  il  poet  aver,  ut  plus  urera  a  son  avantage).  For 
hy  such  release  of  all  manner  of  demands  (per  tiel  release  de  touts  man- 
ners §  de  demands),  all  maner  of  actions  reals,  personals,  and  actions  of 
appeale,  are  taken  away  and  extinct,  and  all  manner  of  executions  are 
taken  away  and  extinct. 

''   A  LL  manner  of  demands."  (5  Rep.  56.  a.) 

-^J-  (Cro.  Jac.  623.) 

"  Demand,"  Demandum,  is  a  word  of  art,  and  in  the  under-  ^  '  '       '' 
standing  of  the  common  law  is  of  so  large  an  extent,  as  no  other 
one  word  in  the  law  is,  unlesse  it  be  clamcum,  whereof  Littleton  Lit.  Sect.  445. 
maketh  mention,  S>;ct.  445.    And  here  it  is  to  be  observed,  that  Bract. li.  Leap, 
there  bee  two  kinde  of  demands  or  claimes,  viz.  a  demand  or  g^^ju 


s  case. 


claime  in  deed,  and  a  demand  or  claime  in  law :  or  an  expresse,  359,  &c. 
and  an  implied  demand  or  claime.     Littleton  here  putteth  ex-  (8Rep.  Alt- 


amples  of  both  :  and  first  he  speaketh  of  reall  actions,  wherein  foi^YsiT^' 


hee  that  bringeth  his  action  maketh  his  demand,  and  therefore 

hee  is  properly  called  a  demandant ;  and  hee  that  defondeth  is 

called  tenant,  because  hee  is  tenant  of  the  freehold  of  the  land. 

Of  demands  implied,  or  in  law,  Littleton  putteth  examples:  (2  Cro.  487.) 

First,  of  all  actions  personals  :  Secondly,  of  appcales  :  for  in  both  38  II-  8.  tit. 

those  cases  he  that  bringeth  the  suit  is  called  plaintife,  and  not  g  j/'^-^^'is  ^'   ' 

demandant,  and  he  that  defendeth  is  called  defendant.    Thirdly,  19  n.  0.  3,  4. 

of  executions.     Fourthly,  of  title  or  right  of  entry,  eyther  by  2*)  Ass.  Pi.  5. 

force  of  a  condition,  or  by  any  former  right,  which  meercly  is  a  ^g  -£  g'  ^  'j^ 

demand  or  claime  in  law;  but  otherwise  it  is  in  the  king's  case.  50  Ass.  Pi.  6. 

Fifthly,  of  a  rent  service,  rent  charge,  common  of  pasture,  &c.  14  H.  4.  8. 

which  also  are  meere  demands  or  claimes  in  law  (\).     All  which  V^      ^on''* 

'^   ■'  Avow.  89. 

Lib.  8.  fo.  153.  Ed.  Altbam's  case.      Lit.  170.  Sect.  748.      Dyer,  5  El.  217.     (Yelv. 

214.)     (Cro.  Jac.  170,  171.)     (10  Rep.  51.  b.) 

Littleton 

*  de  not  in  L.  and  M.  or  Roh.  \  que  il  not  in  L.  and  31.  or  Koh. 

f  a  luy — que  celuy,  L.  and  M.  and         §  de  not  in  L.  and  M.  or  Jioh. 
Roh. 


(1)  Nota  the  diversity.  Jf  A.  releases  to  B.  a??  his  demands  generally,  or  ail 
his  demands  out  0/  the  manor  of  D.  there,  rent  and  common  is  released,  whether 
present  or  future  :  hut  if  he  releases  to  13.  all  demands  which  he  has  tipon  him, 
there,  no  rent  or  common,  present  or  future,  is  released,  quia  release  est  tantum 
personel.  Trin.  5  Ja.  Hancock  v.  Field. — Adjudged  contra,  that  a  release  of 
all  demands  is  not  a  bar  to  a  covenant  before  breach  ; — but  it  is  agreed,  that  it 

bars 


291.  b.  292.  a.]     Of  Releases.     L.  3.  C.  8.  Sect.  509,  510. 

Littleton  here,  and  in  the  two  next  Sections  following,  putteth 
but  for  examples ;  for  by  the  release  of  all  demands,  other  things 
also  be  released,  as  rents  seek,  all  mixt  actions,  a  warranty  which 
is  a  covenant  reall,  and  all  other  covenants  reall  and  personall, 
estovers,  all  manner  of  commons  and  profits  apprender,  condi- 
tions before  they  be  broken  or  performed,  or  after,  annuities, 
recognizances,  statutes  merchant  or  of  the  staple,  obligations, 
contracts,  &c.  are  released  and  discharged  (2). 

(10  Rep.  47.) 

S3Lr;:m!)  Sect.  509. 

.AND  if  a  man  hath  title  of  entvT/  into  any  lands  or  tenements^  by  such 
a  release  his  title  is  taken  away. 
ijSed  quaere  de  hoc  ;/or  Fitz- James  chief e  justice  of  England  holdeth  the 
contrary,  because  an  entrie  cannot  bee  'proiJerly  saicLa  demand,  P.  19  H.  8. 

34  H.  8.  tit.         «  fi@-  miTLK"     Here  title  is  taken  in  the  largest  r292.1 
rh®Inn!:3  ^'  c.  sense,  including  riixht  also.  L     a.     J 

Liiauncey  s  case.  j  o      c  l  J 

Lib.  8.  fo.  153. 

Ed.  Altham's  <'  Sed  quasre,   &c."       This  is  an  addition,  and  no  part   of 

Littleton,  and  the  opinion  here  cited  cleerely  against  law. 


case 


Sect.  510. 

AND  if  a  man  hath  a  rent  service  or  rent  charge,  or  common  of  pas- 
ture, cj-c.  by  such  a  release  of  all  manner  of  demands  made  to  the 
tenants  of  the  land  out  of  which  the  service  or  the  rent  is  issuing,  or  in 
zvhich  the  common  is  (per  tiel  release  de  touts  manners  de  demaunds 
fait  al  tenaunts  de  la  terre  dont  le  service  ou  le  rent  est  issuant,  ou  eu 
t  que  le  common  est),  the  service,  the  rent,  and  the  common,  is  taken 
away  and  extinct,  ^c. 

This  upon  that  which  hath  been  said,  needeth  no  further  explication. 

Sect. 

li  This  paragraph  not  in  L.  and  M.  f  que — c^uelle  terre,  L.  and  M. 
or  Roh.  and  Roll. 

bars  icarranty ,  for  that  lies  properly  on  demand,  because  he  may  have  warrantia 
chartae.  So  also  reservation  of  rent,  by  indenture,  is  a  covenant  in  law,  viz. 
covenant  real ;  for  it  runs  icith  the  land,  and  does  not  lie,  after  a  duration,  but 
against  the  tenant  of  the  land :  and  it  is  agreed  that  by  a  release  of  all  demands 
a  covenant  real  is  released j  for  the  rent  itself,  vpon  which  the  covenant  in 
law  rises,  is  released.  So  14  IT.  8,  9.  But  however  the  law  may  be  of 
covenants  real,  it  seems  to  be  contrary  of  covenants  personal ; — and  so  there  is 
good  difference.  Sed  forsan,  these  passages  are  not  to  be  understood  of  covenants 
before  the  breach,  though  covenants  before  the  breach  are  expressive.  Ld.  Nott. 
MSS.— [Xote  250.] 

(2)  But  a  release  of  all  demands  does  not  discharge  rent  before  it  is  due, 
if  it  be  a  rent  incident  to  the  reversion ;  for  the  rent  at  the  time  was  not  only 
not  due,  but  the  consideration,  viz.  the  future  enjoyment  of  the  lands,  for 
which  the  rent  was  to  be  given,  was  not  executed.  1  Sid.  141.  1  Lev.  99. 
3  Lev.  274.     Note  to  the  12th  edition. — [Xote  251.] 


L.  3.  C.  8.  Sect.  511-12.  Of  Eeleases.     [292.  a.  292.  k 


Sect.  511. 

j^LSO,  if  a  ma7i  rcleasefh  to  another  all  manner  of  quarrels,  or  all 
controversies  or  debates  hetweene  them,  <fc.  quaere,  to  what  matter 
and  to  what  effect  such  worek  shall  extend  themselves,  <f-e. 

"  C^  UARRELS,"  Querela  a  querendo.  This  properly  concern-  40  E.  3.  47.  b. 
^  cerueth  personall  actions,  or  mixt,  at  the  highest ;  for  the  ^^-  -^'['."»«»"s 

^    •    !.■£     •      xL         •         11    1  1  •  .      n^ ^  •       ■     ■      case,  ubi  supra. 

plamtite  m  them  is  called  querens  and  in  most  oi  the  writs  it  is  35  h.  8.  Dier,  57. 
said,  queritur.     And  yet  if  a  man  release  all  quarrels  (a  man's  9  E.  4. 44. 
deed  being  taken  most  strongly  against  himself)  it  is  as  beneficiall  (^  -^^P*  ^^-^ 
as  all  actions ;  for  by  it  all  actions,  reall  and  personall,  are  re-  39  H.  6.  9. 
leased.  And  by  the  release  of  all  quarrels,  all  causes  of  actions  are 
released  thereby,  albeit  no  action  be  then  depending  for  the  same. 

"  Quarrels."     Controversies  and  debates  are  synonima,  and  of  Lib.  8.  fol.  153. 
one  signification.     Litis  nomcn  omnem  actionem  significat,  sive  Altham's  case. 
in  rem,  sive  in  j>ersonam  sit.     If  a  man  release  omnes  loquelas,  j'  n'b'  23  I's 
it  is  as  large  as  omnes  actiones ;  for  omnis  actio  est  loq^tela,  and 
it  extendcth  as  well  to  actions  in  courts  of  record,  as  base  courts  j 
for  the  wiit  of  error  saith,  iji  recordo  et  j^rocessu,  &c.  loquela  quce 
fnit  inter,  &c.     And  so  the  writ  of  false  judgement  saith,  ricor- 
dari  facias  loquelam,  where  the  judgement  was  given  in  the 
county    court.       Omnes   exactiones  seeme   to   be  large  words ;  ^0  Ass.  6. 
for  exactio  derivatur  ah  exvjendo,  and  exigere  signitieth  to  en-  fo  ^'l'  ^^' 
quire  or  demand.  Avowrie,  89. 

Sect.  512. 

j^LSO,  if  a  man  by  his  deede  bee  bound  to  another  in  a  certaine  summe 
of  money,  to  i^ay  at  the  feast  of  Saint  Michael  next  ensuing,*  if  the 
obligee  before  the  said  feast  release  to  the  obligor  all  actions,  he  shall  be 
barred  of  the  duety  for  ever,  and  yet  he  could  not  have  an  action  at  the 
time  of  the  release  made. 

''RELEASE  to  the  obligor  all  actions,  &c."     The  (Dyer,  307.  a.) 

[2 92. "I  reason  fi@"of  this  case  is,  for  that  the  debt  is  a  %'^^il\{f^' 

|_     b.     J  thing  consisting  meerely  in  action ;  and  thefore  albeit  412.) 

no  action  lyeth  for  the  debt,  because  it  is  dehitum  in  11  H.  4.  41.  43. 

prsesenti,  quamvis  sit  solvendum  in  futuro,  yet  because  the  right  o^r'^t^oooN^" 

of  action  is  in  him,  the  release  of  all  actions  is  a  discharge  of  the 

debt  it  selfe.  [o]  And  so  may  an  executor  before  probate  release  [o]  Trin.  2  Ja. 

an  action;  and  yet  before  probate  he  can  have  no  action,  because  _i»  Com.  Banco, 

the  right  of  the  action  is  in  him,  and  so  it  was  adiudccd.    And  ^?^fj.  ^I^J^'^ton 
.1     ,  T  1  ,•  1  °       1  *  Rinnot. 

some  say,  that  an  ordinary  may  release  an  action,  and  yet  he  can  is  H.  6.  23.  b. 
have  none.  But  if  a  man  by  deed  doth  covenant  to  build  an  Pi-  Com.  277, 
house  or  make  an   estate,  and  before  the  covenant  broken,  the  p'^;  ^?  ^'^^s- 

'  '  broke  s  case,  per 

Weston.  5  Eliz.  Dier,  217.    AUbam's  case,  ubi  supra.    (10  Rep.  51.  b.)    IRep.  112.  b. 
(2  Cro.  222.  571.     SiJ.  85.     Hob.  216. 

covenantee 
*  &c.  added  in  L.  and  M  .  and  Roh. 


292.  I).  293.  a.]      Of  Releases.      L.  3.  C.  8.  Sect.  513-14. 

covenantee  releaseth  to  him  all  actions,  suits,  and  quarrels,  this 
doth  not  discharge  the  covenant  it  selfe,  because  at  the  time  of 
the  release,  nihil  fidt  dchituvi,  there  was  no  debt,  or  duty,  or 
cause  of  action  in  being.  But  in  that  case  a  release  of  all  cove- 
nants is  a  good  discharge  of  the  covenant  before  it  be  broken. 

Sect.  513. 

J}  UT  if  a  man  letteth  land  to  another  for  a  yeare,  to  yceld  to  him  at 
the  feast  of  S.  Mich.  7iext  insuing  40s.  and  afterwards  before  the 
same  feast  hee  releaseth  to  the  lessee  all  actions,  yet  after  the  same  feast 
hee  shall  have  an  action  of  debt  for  the  non  payment  of  the  40s.  not- 
withstanding the  said  release.  Stude  causam  diversitatis  between  these 
ttvo  cases. 


9  H.  7.  5.  a. 
(8  Rep.  153.) 
45  E.  3.  8. 
17  H.  6.  26. 
13  H.  4. 
Avowrie,  240. 


"  I^ELE A  SE Til  all  actions."  This  release  shall  not  barre 
the  lessor  of  his  rent,  because  it  was  neither  dehitum  nor 
solvendum  at  the  time  of  the  release  made  ;  for  if  the  land  be 
evicted  from  the  lessee  before  the  rent  become  due,  the  rent  is 
avoynen  ;  for  it  is  to  be  paid  out  of  the  profits  of  the  land,  and 
it  is  a  thing  not  moerely  in  action,  because  it  may  be  granted 
over.  But  the  lessor  before  the  day  may  acquite  or  release  the 
rent.     But  if  a  man  be  bound  in  a  bond  or  by  contract  to  an- 

'■  other  to  pay  a  hundred  pounds  at  five  several  daies,  he  shall  not 
have  an  action  of  debt  before  the  last  day  be  past ;  and  so  note 
a  diversity  betweenc  duties  which  touch  the  realty,  and  themeere 

'"   personalty.     But  if  a  man  be  bound  in  a  recognizance  to  pay  a 

.  hundred  pound  at  five  scverall  dayes,  presently  after  the  first  day 
of  payment  he  shall  have  execution  upon  the  recognizance  for 

!*  that  summe,  and  shall  not  tarry  till  the  last  bee  past,  for  that  it 
is  in  the  nature  of  severall  judgments.  And  so  note  a  diversity 
between  a  debt  due  by  recognizance,  and  a  debt  due  by  bond  or 
coatract.     And  so  it  is  of  a  covenant  or  promise,  after  the  first 

3,  default  an  action  of  covenant,  or  an  action  upon  the  case  doth  lie, 
for  they  are  severall  in  their  nature.  Lastly,  note  a  diversity 
between  debts  and  covenants,  or  promises. 

If  a  man  hath  an  annuity  for  terme  of  yeares,  or  for  life,  or  in 
fee,  and  he  before  it  be  behind  doth  release  all  actions,  this  shall 
not  release  the  annuity,  for  it  is  not  meerely  in  action,  because 
it  may  be  granted  over. 

See  Mo.  13.      Bend.  57.      Cro.  Eliz.  807.      Cro.  Car.  241. 


«®-  Sect.  514. 


[^f-] 


A  LSOy  where  a  man  will  sue  a  writ  of  right,  it  behoveth  that  he 

counteth  of  the  seisin  of  himself e,  or  of  his  ancestors,  and  also  that  the 

seisin  was  in  the  same  king's  time,  as  hepleadeth  in  his  plea.  For  this  is 

an  ancient  law  used,  as  appear eth  by  the  report  of  a  plea  in  the  eire  of 

Nottingham,  *  tit.  Droit  in  Fitzherbert,  cap.  26,inthis  forme  following. 

John 

*  tit.  Droit  in  Fitzherbert,  cap.  26,  tiot  in  L.  and  M.  or  Roh. 


L.  3.  C.  8.  Sect.  5U.     Of  Keleases,  [293.  a. 

John  Barre  brought  his  writ  of  right  against  Reynold  of  Assington,  aud 
demanded  certaine  lands,  cj-e.  f  where  the  mise  is  joyned  in  banke,  and 
the  originall and  the  processe  were  sent  before  the  justices  errants,  where 
the  parties  came,  and  the  |  ttvelve  knights  -were  sivorne  without  challenge 
of  the  parties,  to  be  allowed,  because  that  choice  was  made  by  assent  of  the 
parties,  with  the  four e  knights,  and  the  oath  was  this :  That  I  shall  say 
the  truth,  cfc.  whether  11.  of  A.  hath  more  meere  right  to  hold  the  tenements 
zvhich  John  Barre  demanded  against  him  by  his  ivrit  of  right,  or  John 
to  have  them,  as  he  demandeth,  and  for  nothing  to  let  to  say  the  truth 
(et  pur  rien  dirra  que  le  verity  ||  ne  dirra),  so  helpe  mee  God,  ij-c.  without 
saying  to  their  knoiuledge.  And  the  like  oath  shall  bee  made  in  an  attaint, 
and  in  battaile,  and  in  wager  of  law.  (Et  tiel  serement  serra  fait  en 
attaint,  et  en  battaile,  et  §  en  ley  gager),/(9r  these  doe  bring  every  thing 
to  an  end.  But  John  Barre  counted  of  the  seisin  of  one  Ralfe  his  ancestor 
in  the  time  of  king  Henry,  and  Reynold  upon  the  mise  joyned  tendered 
halfe  a  mar ke  for  the  time,  ^c.  And  heretipon  HqAq,  justice,  said  to  the 
grand  assise  after  that  they  tvere  charged  upon  the  meere  right,  You  good 
men,  Reynold  gave  halfe  a  marke  to  the  king  for  the  time,  to  the  intent 
that  if  you  jind  that  the  ancestor  0/ John  ivas  not  seised  in  the  time  that 
the  demandant  hath  pleaded,  you  shall  enquire  no  further  upon  the  right 
(Vous  gentes,  Reynold  donast  demy  marke  al  roy  pur  le  temps,  *|[  al 
entent  qui  si  \.  vous  troves  que  I'aunccster  **  John  ne  fuit  pas  seisie  en 
le  temps  que  le  demaundant  ad  count,  \.\.  vous  n'enquires  plus  avant 
del  droit) ;  and  for  this,  you  shal  tell  us,  ivhether  the  ancestor  of  John 
(Ralfe  by  name)  were  seised  in  kirg  Henries  time,  as  he  hath  pleaded,  or 
not.  And  if  you  find  that  he  ivas  not  seised  in  this  time,  you  shall  enquire 
no  more;  and  if  you  find  that  he  toas  seised,  then  you  shall  eyiquire  fur- 
ther of  the  writ  (donques  enquires  ouster  del  W  briefe),  Ayid  after  the 
grand  assise  came  in  with  their  verdict,  and  said,  that  Ralfe  was  not  seised 
(que  Rafe  §§  ne  fuit  pas  seisie)  in  the  time  of  king  Henry,  whereby  it  was 
awarded  that  Reynold  should  hold  the  tenements  demanded  against  him, 
to  him  and  hisheircs  quite  0/ John  Barre  and  his  heires  to  the  remnant. 
And  John  in  mercy  (A),  (f-c.  And  the  reason  lohy  I  have  shewed  to  thee, 
my  son,  this  plea,  is,  to  prove  the  ^natter  precedent  which  is  said  in  a  writ 
of  right;  for  it  seemeth  by  this  plea,  that  if  Reynold  liad  not  tendered  the 
halfe  marke  to  enquire  of  the  time,  ^'c.  then  the  grand  assise  ought  to  be 
charged  onely  to  enquire  of  the  meere  right,  and  not  of  the  p)os8ession,  A-c. 
liJI  And  so  alwayes  in  a  writ  of  right,  if  the  possession  whereof  the  danand- 
ant  counteth  bee  in  the  king's  time,  as  hee  hath  pleaded,  then  the  charge 
of  the  grand  assise  shall  be  only  upon  the  meere  right,  although  that  the 
possession  were  against  the  law,  as  it  is  said  before  in  this  chapter,  <fc. 

"/y 

(A)  Part  nf  the  ****  judgment  in  this  case  was,  that  the  demandant  xhonld  he  in  mcrcu, 
&c.  i.  e.  that  he  iihould  he  at  the  kiwj'n  inerci/,  with  regard  to  the  pertiniari/  Jiiie  to  he  imposed 
on  him  as  a  punishment  for  his  harimj  made  a  false  or  groundless  complaint.  lii/  the  old 
law,  the  plaintiff  was  liable  to  amercement  in  every  suit  or  action  at  law,  in  rase  he  /ailed  in 
it.  The  amercement  is  now  disused,  hut  the  form  still  continues,  i'ee  3  Black'.  Comm.  p.  375. 
and  the  Appendix  there,  p.  vi.  &  xxv.  Archhold's  ed. 

"j"  where  not  in  L.  and  M.  or  Roh.  **  John  not  in  L.  and  M.  or  Roh. 

'^  twelve  not  iu  L.  and  M.  or  Roh.  W  vous — home,  L.  and  M.  and  Roh. 

II  ne — jeo,  L.  and  M.  and  Roh.  and  in  MiSS. 

§  en — le,  L.  and  M.  and  Roh.  ||  briefe — droit,    L.    and    M.    and 

^  al  entent — et  ceo  sert,  L.  and  M.  Roh. 

and  Roh.  and  in  MSiS.  §§  ne  not  in  L.  and  M.  or  Roh. 

\.  vous — borne,  L.and  M.  and  Roh.  ||l|  And  not  iu  L.  and  M.  or  Koh. 


293.  a.  293.  b.  294.  a. J  Of  Keleases.  L.  3.  C.  8.  Sect.  514, 

(Ant.  279.  a.)       "  TT  liehoveth  that  hecounfeth  of  the  seisin  o/himael/e,  or  0/  his 
For  the  time  of  ancestors."     For  if  ncyther  hee  nor  any  of  liis  ancestors 

th™  stSe  of^  ^^^^  ^^^^^^  °^  ^^^  ^^°^'  ^^-  ■wif^in  tlie  time  of  limitation,  he 

32  H.  8.  cap.  2.  cannot  maintaine  a  writ  of  right :  for  the  seisin  of  him  of  whom 

Vide  Sect.  170.  the  demaundant  himselfe  purchased  the  land,  &c.  availeth  not. 

Hob'^240^T  And  so  it  is  in  a  writ  of  right  of  advowson. 

2  E^  3  V    '  "  "Also  that  the  seisin  u-as  in  the  same  Icing's  time,  as  he  j^lead- 

Litt.  112.  a.  cth."  Hereby  it  appeareth,  that  not  onely  a  seisin  (as  hath 
beene  said)  is  requisite,  but  also  that  the  seisin  be  had  in  the 
time  of  the  same  king,  according  to  his  count. 

"  Rej)ort"  commeth  of  the  Latine  word  Reportare,  a  re  et 
porto,  id  est,  referre,  a  re  et  /era.  And  in  the  common  law  it 
signifieth  a  publike  relation,  or  a  bringing  againe  to  memory 
cases  judicially  argued,  debated,  resolved,  or  adjudged  in  any  of 
the  king's  courts  of  justice,  together  with  such  causes  and  rea- 
sons as  were  delivered  by  the  judges  of  the  same;  and  in  this 
sense  Littleton  useth  the  word  in  this  place. 

(4  Inst.  184.)  "In  the  eire  0/ Nottingham."     Eire,  Iter.     And  it  signifieth 

the  court  of  the  justices  in  eire,  and  thereupon  they  were  called 
justitiarii  itinerantes,  in  respect  that  the  justices  re- 
siding at  B@°"  Westminster  were  called  justiciarii  rS93.1 
residentes,  and  were  much  like  in  this  respect  to  the   L     '^^     J 
justices  of  assise  at  this  day,  although  for  authority 
and  manner  of  proceeding  (whereof  you  shall  reade  [p]  in  the 
Q)]  Mirror,  cap.  ancient  authors  of  the  law)  farre  different.  And  as  the  power  of 
sect.  I'o  and        *^^  justices  of  assises  by  many  acts  of  parliament  and  other  com- 
ca.4,le  ofiBcedes  missions  increased,  so  these  justices  itinerant  by  little  and  little 
.Justices  in  Eire,  yanished  away.  And  it  is  certaine,  that  the  authority  of  justices 
cap"li  ''   *         ^^  assises  itinerant  through  the  whole  realme,  and  the  institution 
Li.  8.cap.primo.  of  justices  of  peace  in  every  county  being  duely  performed,  are 
Britt.  fol.  1.  b.     t}je  most  excellent  meanes  for  the  preservation   of  the   king's 
iVb  3  f  lls'^Vc.  peace,  and  quiet  of  the  realme,  of  any  other  in  the  Christian  world. 
Flet.  11.  i.  ca.  15,  &c.        4  E.  3.  32.         6  E.  3.  35,        23  E.  3.  21.         15  H.  7.  5. 
Vide  Sect.  442.  23.3,  234. 

"Of  Nottingham."  This  should  hQQ  Northampton,  accord- 
ing to  the  originall. 

This  report  whereof  Littleton  here  makcth  mention,  you  shall 

3  E.  3.  tit.  finde  an  abstract  of  it  in  3  E.  3,  since  Littleton'^  time,  put  in 
Droit.  F.  26.        print  by  Fitzherhcrt  when  he  was  Serjeant  in  11  //.  8,  and  is  not 

in  the  Reports  or  bookes  at  large.  And  yet  here  it  appeareth, 
that  they  be  of  great  authority,  and  vouched  by  Littleton  him- 
selfe for  the  proofe  of  a  maine  point  in  law.  And  hereby  it  also 
appeareth  how  necessary  it  is  to  reade  records  and  pleas  reported 
or  recorded,  though  they  were  never  printed.  For  those  and 
the  like  records  are  veritatis  et  vetustatis  vestigia. 

"Tit.  Droit  in  Fitzherbert,  26,"  is  J8@»  of  a  new  rQ94.1 
addition,  and  therefore  though  it  bee  true,  yet  not  to  |_  a.  J 
bee  allowed. 

4  E.  3.  41.  "And  the  originall  and  the  processe  v:ere  sent  before  the  Justices 
Peverel's  case,  errants."  For  it  is  to  be  understood  that  all  pleas  either  in  the 
Bract*oii^^*°^'^'  ^^^^^^^J  ^r   personalty  that  were  begunnc  and  not  determined 

Britton,'Fleta,  ubi  supra.  before 


L.  3.  C.  8.  Sect.  514.    Of  Releases.  [294.  a.  294.  b. 

before  justices  in  eire,  were  adjourned  by  them  into  the  court  of 
common  pleas. 

"  The  twelve  knights  were  sworne  without  challenge,  &c.  because 
that  choice  loas  made  hy  assent  of  the jiartiesj  with  the/our  knights." 

Here  are  foure  things  to  be  observed.  30  e.  1.  tit. 

First,  that  omnis  consensus  tollit  erroreni,  and  against  his  owne  Challenge,  172. 
consent  he  cannot  challenge  the  twelve.  2^  ^"  g"  J^* 

44  E.  3.  6.     11  H.  6.  13.     (Cro.  eI.  664.) 

Secondly,  that  the  foure  knights  electors  of  the  grand  assise  4  E.  3. 13. 
are  not  to  be  challenged,  for  that  in  law  they  be  judges  to  that 
purpose,  and  judges  or  justices  cannot  bee  challenged.  And  that 
is  the  reason  that  noblemen,  that  in  case  of  high  treason  are  to 
passe  upon  a  peere  of  the  realme,  cannot  be  challenged,  because 
they  are  judges  of  the  fact,  and  the  Magna  Charta  saith,  per  Magna  Charta, 
judicium  pariuni  suoruni.  cap.  29. 

Thirdly,  that  the  twelve  before  any  assent  may  be  challenged 
before  the  foure  knights  electors,  but  after  assent  or  return  of  39  E.  3. 2. 
the  pannell  before  the  justices,  there  shall  be  no  challenge  to  the  ^  ^-  ^•^^• 
pannell  nor  the  polles. 

Fourthly,  if  there  be  not  foure  knights  for  electors  in  that  '^  H-  ^-  20- 
county,  the  next  to  them  in  that  county  shall  be  taken;  ne curia 
regis  dejiceret  in  justitia  exhibendd. 

"  Without  saying  to  their  knoioledge."     And  here  it  appeareth 

that  where  the  judgment  is  fiuall,  there  the  oath  of  the  grand 

assise  or  jury  is  absolute,  and  not  to  their  knowledge, 

t29-4.~|   as  S^"  here  in  the  writ  of  right,  in  the  attaint,  and  in 
b.     J  wager  of  law,  for  the  judgment  in  every  of  these  three 
is  finall. 

"  The  raise  isjoyned,"  Mise  is  a  word  of  art  appropriated  only  vide  Sect,  193. 
to  a  writ  of  right,  so  called  because  both  parties  have  put  them- 
selves upon  the  meere  right  to  be  tryed  by  grand  assise  or  by 
battaile ;  so  as  that  which  in  all  other  actions  is  called  an  issue,  Registrum. 
in  a  writ  of  right  in  that  case  is  called  a  mise.     And  in  this 
sense  Littleton  taketh  it  here.     But  in  a  writ  of  right  if  a  col- 
laterall  point  is  to  be  tryed,  there  it  is  called  an  issue  ;  and  is  de- 
rived of  this  word  (missum),  because  the  whole  cause  is  put  upon  33  H.  8.  ca.  13. 
this  point.     It  is  also  taken  for  expences,  as   inisse  &  custagia.  ^  ^'  ^-  ^^'  ^^' 
And  sometimes  it  signifieth  a  customary  grant  to  the  king,  or 
lords  marchers  of  Wales  by  their  tenants  at  their  first  comming 
to  their  lands. 

"  Tendred  hal/e  a  marke  for  the  time."     Master  Lamhard  10  E.  3.  20. 
saith,  that  mancusa  &  marca  Saxonice  Mancup.  7.  MearcJ  Num-  ^^  •^-  ^• 
mus  30  valens  denarios.     And  this  mearc,  is  now  called  a  marke,  22^  E.  3  17. 
being  an  old  Saxon  word,  is  the  cause  that  England  most  com-  is  H.  3. 
monly  reckoned  by  markes.   Libra  Saxonich  is  a  pund,  dpondo,  Droit,  62. 
which  is  called  so  untill  this  day.    Solidus,  qici  apud  nos  est  pars  Lamb  explicat 
librae  vicesima,  denarios  per  id  tcmporis  continebat  quinqtie,  nunc  yerborum  verbo 
duudecim ;  and  scilling  in  a  Saxon  word,  and  with  us  used  to  Mancusa. 
this  day.     Pennye,  Saxonich  pennig,  Latine  denarius  ;  but  the 
value  of  these  have  not  been  alwayes  one. 

In  a  writ  of  right  of  advowson  brought  by  the  king,  the  tenant  P-  N.  B.  31. 
shall  not  tender  the  rft-marke,  because  nullum  iempus  occurrit  j"^  3  D^oitis 

regi  6  e!  3!  ibid.  24. ' 

Vol.  II.— 30 


Mirror,  ca.  1. 
?  17.  ca.  3.  de 
Attaint,  ca.  5. 
§  1.  Bract,  fo. 
288,  289,  Ac. 
292.     Brit.  fol. 
241.  245,  246, 
Ac.     Flet.  li.  5. 
ca.  21  &  34. 
Fortescue, 
ca.  26. 
(3  Inst.  163. 
222.) 


29-1.  b.  ]  Of  Releases.        L.  3.  C.  8.  Sect.  514. 

regi{h);  and  therefore  the  king  shall  alledge,  that  he  or  hia 
progenitor  was  seised,  without  shewing  any  time. 

"  In  an  attaint.'*  Attincta  is  a  writ  that  Ijeth  where  a  false 
verdict  in  court  of  record  upon  an  issue  joyned  by  the  parties  is 
given.  And  of  ancient  writers  it  is  called  breve  de  convictione  ; 
and  is  derived  of  the  participle  tinctus,  or  attinctus,  for  that  if 
the  petty  jury  be  attainted  of  a  false  oath,  they  are  stained  with 
perjury,  and  become  infamous  for  ever;  for  the  judgment  at  the 
common  law  in  the  attaint  importeth  eight  great  and  grievous 
punishments.  1.  Quod  admittant  liheram  legem  in perpetuum, 
that  is,  he  shall  be  so  infamous  as  he  shall  never  be  received  to 
be  a  witness,  or  of  any  jury.  2.  Quod  foris  faciant  omnia  bona 
&  catalla  sua.  3.  Quod  terrse  et  tenementa  in  manus  domini 
regis  capiantiir.  4.  Quod  uxores  &  liberi  extra  domus  suas  ejice- 
rentur.  5.  Quod  domus  suse prostrentur.  6.  Quod  arhores  suae 
extirpentur.  7.Quddj)ratasuaarentur.  UtS.  Quod  corpora  sua 
carceri  mancijyentur.  So  odious  is  perjury  in  this  case  in  the  eye 
of  the  common  law,  and  the  severity  of  this  punishment  is  to  this 
end,  ut  pcena  ad  paucos,  mettis  ad  omnes  perveniat ;  for  there  is 
miser  icor d ia puniens,  and  there  is  crudelitas parcens.  And  seeing 
all  tryals  of  reall,  personall,  and  mixt  actions  depend  upon  the 
oath  of  12  men,  prudent  antiquity  inflicted  a  strange  and  severe 
punishment  upon  them,  if  they  were  attainted  of  perjury. 

Bat  since  Littleton  wrote,  a  statute  hath  beene  made  in  miti- 
gation of  the  severity  of  the  common  law,  in  case  when  the 
petite  jury  is  attainted,  and  therefore  it  is  taken  by  equity.  For 
where  the  statute  saith,  that  the  party  grieved  shall  have  an 
attaint  against  the  party  which  shall  have  judgment  upon  the 
verdict,  yet  an  attaint  shall  be  maintained  upon  that  statute 
against  the  executors  of  the  party.  Et  sic  de  similibus.  [a]  But 
see  the  statutes  and  authorities  quoted  in  the  margent.  Only  I 
thought  good  to  preserve  three  things. 

First,  that  no  attaint  can  be  maintained  upon  this  statute  but 
between  party  and  party. 

Secondly,  that  no  conusance  can  be  granted  upon  any  attaint, 
because  all  attaints  are  to  be  taken  either  before  the  king  in  his 
bench,  or  before  the  justices  of  the  common  place,  and  in  no 
other  courts,  &c. 

Thirdly,  consider  what  pleas  may  bee  pleaded  in  an  attaint 
Mirror,  ca.  1,  §  3.  j^y  force  of  this  act,  and  what  not. 

ca.  3.  Jl.ca.  •'  ' 

6.  ^  1.  Bracton,  lib.  3.  141.  b.  &  fo.  320.  331.  Glanvil.  lib.  2.  cap.  3,  4,  5. 
Lib.  8.  ca.  9.  Lib.  4,  ca.  1.  Brit.  fo.  40.  42,  43, 81. 175,  190.  Fleta,  lib.  1. 
ca.  32.  and  lib.  2  cap.  48. 

"  In  battaile."     Duellum,  monomacia,  and  it  signifieth  in  the 
common  law  a  tryall  by  single  fight,  by  battaile  or  combate, 
3.  41.      monomachia  (1).    [b'\  And  in  the  writ  of  right  neither  the  tenant 


[a]  23  H,  8. 
ca.  3.     3  Eliz. 
Dyer,  201. 
7  E.  6.  ibidem, 
81.     3  Mar. 
ibidem,  129. 
7  Eliz.  ibidem, 
235.     24  H.  8. 
Br.  Attaint.  96. 
4  Mar.  ib.  127. 
20  H.  7.  5. 
42  a.  S,  26. 
r.  N.  B.  107.  D. 


[i]4  5 
17  E.  3 
19  H.  6 
17  Eliz. 
Mirror, 
cap.  5. 
ca.  56 


.  35.     1  H.  4.  3.     30  E.  3.  20.     29  E.  3.  12.     13  H.  4.  4.    Staundf.  174.  178. 

Dier,  9  E.  4.  35.  1  H.  6.  6.  3  H.  6.  55.  Vid.  li.  9.  fo.  32.  b.  &  33.  b. 
ca.  4.  del.  ofBces  des  justices,  Ac.  Glanvil.  li.  1.  cap.  9.  Lib.  8.  cap.  8.  Lib.  10. 

Bra.ct.  11.  3.  tract.  2.  ca.  37.  &  li.  5.  fol.  410.  Britton,  fol.  56.  Fleta,  lib.  2. 
63. 

(A)  TTiia  rule  is,  however,  subject  to  various  exceptions.     See  ante  119.  a.  note  1. 

(l)Upon  this  subject,  see  3  Black,  ch.  22.  sect.  6  and  6.  and  the  notes  to 

the 


or 


L.  3.  C.  8.  Sect.  514.      Of  Releases.  [294.  b.  295.  a. 

or  demandant  shall  fight  for  themselves,  but  finde  a  champion  to 
fight  for  them  :  because  if  either  the  demandant  or  tenant  should 
be  slaine,  no  judgement  could  be  given  for  the  lands  or  tene- 
ments in  question.  But  in  an  appeale  the  defendant  shall  fight 
for  himselfe,  and  so  shall  the  plaintife  also ;  for  there  if  the  de- 
fendant be  slaine,  the  plaintife  hath  the  efibct  of  his  suite,  that 
is,  the  death  of  the  defendant;  the  order  and  solemnity  whereof 
you  may  reade  in  our  ancient  and  latter  bookes.  And  this  the 
law  did  institute  when  the  tenant  failed  of  his  witnesses,  or  evi- 
dences, or  other  proofes ;  and  the  presumption  of  law  is,  that 
God  will  give  victory  to  him  that  hath  right. 

"  Wager  of  law,"  Vadtare  legem  :  and  there  is  also  facere 

legem,  by  making  of  his  law.     That  is,  to   take   an  oath  (for 

example)  that  hee  oweth  not  the  debt  demanded  of  him  upon 

a  simple  contract,  nor  any  penny  thereof.     And  it  is 

[Q95."l  called  wager  of  law,  because  of  ancient  8@°'  time  he 
a.     J  put  in  surety  to  make  his  law  at  such  a  day ;  and  it 
is  called  making  of  his  law,  because  the  law  doth  give 
such  a  speciall  benefit  to  the  defendant  to  barre  the  plaintife  for 
ever  in  that  case,     [r]  But  he  ought  to  bring  with  him  eleven  [;•]  Magna 

persons  of  his  neighbours  that  will  avow  upon  their  oath,  that  Carta,  ca-  28. 
r      ,     .  .  *=  ,  .  ,    ,      .,  1       I  •         ir  i   1 „   Bracton,  lib.  o. 

m  their  consciences  he  saith  truth,  so  as  he  himselte  must  bee  f^,  ^j^q     -pxtiai, 
sworne  de  fidelitate,  and  the  eleven  de  crediditate.  lib.  2.  ca.  6.3. 

'  And  wager  of  law  lieth  not  when  there  is  a  specialty,  or  deed  Diversities  des 
to  charge  the  defendant,  but  when  it  groweth  by  word,  so  as  he  2,Tn%.  8. 
may  pay  or  satisfie  the  party  in  secret,  whereof  the  defendant  (4  Rep.  siade's 
having  no  testimony  of  witnesses  may  wage  his  law,  and  thereby  case,  93.) 
the  plaintife  is  perpetually  barred,  as  Littleton  here  saith ;  for 
the  law  presumeth  that  no  man  will  forsweare  himselfe  for  any- 
worldly  thing;  but  men's  consciences  doe  grow  so  large  (speci- 
ally in  this  case  passing  with  impunity)  as  they  choose  rather 
to  bring  an  action  upon  the  case  upon  his  promise,  wherein 
(because  it  is  tresjmsse  sur  le  case)  hee  cannot  wage  his  law,  than 
an  action  of  debt. 

A  man  outlawed  or  attainted  in  an  attaint,  or  upon  an  indite-  33  II.  6.  32. 
ment  of  conspiracy,  or  of  perjury,  or  otherwise,  whereby  he 
become  infamous,  shall  not  wage  his  law. 

A  man  under  the  age  of  21  yeares  shall  not  wage  his  law;  but  11 II.  6.  40. 
a  feme  covert,  together  with  her  husband,  shall  wage  her  law.      Jq^J'^Ij^'  jgi  j 

When  the  suite  is  for  the  king,  or  for  his  benefit,  as  in  a  quo  32  jj  q  24. 
minus,  the  defendant  shall  not  wage  his  law.  8  H.  5.  Ley,  fi6. 

'  35  H.  8.  Ley,  Br.  102. 

If  an  infant  be  plaintife,  the  defendant  shall  not  wage  his  law.  26  E.  3.  63^.  b. 
An  alien  shall  wage  his  law  in  that  language  he  can  speake. 

In  no  case  where  a  contempt,  trespasse,  deceit,  or  injury  is  44  E.  3.  32. 
supposed  in  the  defendant,  he  shall  wage  his  law,  because  the   24  e.  3'  ^'g. 
law  will  not  trust  him  with  an  oath  to  discharge  himselfe  in  (4  Rep.  95.  b.) 
those  cases ;  only  in  some  cases  in  dett,  detinue,  accompt,  the 
defendant  is  allowed  by  law  to  wage  his  law. 

In 


the  1st  vol.  of  Dr.  Robertson's  History  of  Charles  the  Vth.— The  reader  will 
also  find  some  curious  and  interesting  particulars  upon  this  head,  in  Ph-e  le 
Brvn,  Traits  de  quelques  pratiques  superstitieuses  qui  out  seduit  le  peiiple,  et 
embarrass^  les  scavants. 


295.  a.]  Of  Eeleases.  L.  3.  C.  8.  Sect.  514. 

15  E.  4. 16.  In  an  action  of  account  against  a  receiver,  upon  a  receipt  of 

10  E.  4.  5.  money  by  the  hand  of  another  person  for  account  render  (un- 

^u\q'^°'  "^  Ic^se  it  be  by  the  hands  of  his  wife,  or  of  his  commoigne)  the 

defendant  shall  not  wage  his    law,  because  the  receipt  is  the 

ground  of  the  action,  which  lyeth  not  in  privity  betweene  the 

plaintife  and  defendant,  but  in  the  notice  of  a  third  person,  and 

rrfl  33  H.  6.  24.    ^^^^  ^  receipt  is  traversable.   [fZ]  But  in  an  action  of  debt  upon 

13  H.  7.  3.  a.       an  arbitrament,  or  in  an  action  of  detinue  by  the  bailement  of 

22  H.  6.  41.         another's  hand,  the  defendant  shall  wage  his  law,  because  the 

8  H  6  11  '  debet  and  the  detinet  is  the  ground  of  those  actions,  and  the 
18  H.  8.  3.  contract  or  bailement,  though  it  be  by  another  hand,  is  but  the 
3  E.  3.  28.  convevance,  and  not  traversable.  In  an  action  of  account  against 
I  J  \  \o           a  bailife  of  a  mannor,  the  defendant  cannot  wage  his  law,  be- 

21  H.  6. 30.  cause  it  soundeth  in  the  realty,  in  an  action  oi  debt  which 
24  E.  3.  Ley  63.  concerns  the  realty,  as  for  debt  for  a  rent  upon  a  lease  for  yeares, 
gV^4^  1^^*  or  an  action  of  detinue  for  detaining  an  indenture  of  a  lease  for 
34  H.  8.  Ley,  yeares,  the  defendant  shall  not  wage  his  law,  much  lesse  for 
Gager,  Br.  97.  charters  or  deedes  which  concerne  inheritance. 

10  H.  6.  7.  In  an  action  of  debt  for  a  fine  or  americament  in  a  leete,  the 

6  Er'  B^  d  defendant  shall  not  wage  his  law,  because  the  leete  is  a  court  of 
lyes.  record ;  but  in  an  action  of  debt  for  an  amerciament  in  a  court 

baron  the  defendant  shall  wage  his  law,  for  that  it  is  no  court  of 

record. 

9  H.  5.  3.  In  debt  upon  an  account,  before  auditors,  the  defendant  shall 
^,,^- '^- ^^*  not  wage  his  law,  and  this  by  construction  of  the  statute  of  IF. 
38  U.  6.  6.  *         2.  cap.  11,  which  giveth  them  great  authority,  and  saith,  coram 

auditorihus,  and  therefore  of  an  account  before  one  auditor  the 

law  lyeth.     So  if  the  lord  before  auditors  be  found  in  surplus- 

14  H.  6.  62.         age,  in  an  action  of  debt  brought  by  the  accomptant,  the  lord 

38  H.  6.  6.  shall  not  wage  his  law  by  construction  also  upon  this  statute,  as 

an  incident  arising  upon  the  account. 
28  n.  6.  4.  jjj  an  action  of  debt  by  a  gaoler  against  the  prisoner  for  his 

22  H  C  13  victuals,  the  defendant  shall  not  wage  his  law,  for  he  cannot  le- 

39  II.  6. 12.         fuse  the  prisoner,  and  ought  not  to  suflFer  him  to  die  for  default 

of  sustenance  otherwise  it  is  for  tabling  of  a  man  at  large. 
21  n.  6.4.  In  an  action  of  debt  brought  by  an  attorney  for  his  fees,  the 

defendant  shall  not  wage  his  law,  because  he  is  compellable  to 

38  H.  6. 22.         be  his  attorney.     And  so  if  a  servant  be  retained  according  to 

39  H.  6. 18.         the  statute  of  labourers  in  an  action   of  debt  for  his  salary,  his 

master  shall  not  wage  his  law,  because  he  was  compellable 
to  serve ;  otherwise  it  is,  if  he  be  not  retained  according  to  the 
statute  (1). 

Wheresoever 

(1)  Otherwise  of  a  counsellor  at  law,  for  Tie  cannot  bring  any  action  for 
he   is  not  compellable  to  be  counsellor,  and  his  fee  is  honorarium,  not  a  debt. 

Ammianns,  lib.  3. — Lord  Nott.  MSS. At  Rome  the  functions  of  the  bar 

were  divided  between,  I.  The  Patrons,  or  Orators ;  II.  The  Advocates,  who 
attended  to  inform  or  instruct  the  patrons  upon  the  points  of  law,  which  arose 
in  the  cause;  III.  The  Procurators  :  And,  IV.  The  Cognitors.  The  two  last 
nearly  resembled  the  Attornies  of  our  courts.  Besides  these,  were  the  Juris 
consnlti,  who  gave  their  opinions  and  advice  upon  matters  of  law.  Till  the 
time  of  Augustus  every  person  had  his  liberty;  but  he  confined  it  to  some 
particular  individuals  selected  by  him,  and  made  a  regulation,  that  in  future  no 
one  should  enjoy  that  privilege  but  under  the  authority  of  the  prince.  The 
opinions  of  the  Juris  consulti,  called  the  Rcsponsa  Frudentum,  were  of  great 

weight ; 


L.  3.  C.  8.  Sect.  514.       Of  Keleases.  [295.  a. 

Wheresoever  a  man  is  charged  as  executor  or  administrator,  5  II.  6.  38. 
he  shall  not  wage  his  law,  for  no  man   shall  wage  his  law  of  ^  ^^-  ''•  26. 
another  man's  deed,  but  in  case  of  a  successor  of  an  abbot,  for         '   * 
that  the  house  never  dyeth. 

In 


weight;  and  a  considerable  part  of  the  Roman  law  is  founded  upon  them. 
See  Gravina  de  Ortu  et  Progressu  Juris  Civilis,  lib,  1,  sect.  42,  43,  44.  In  the 
summary  of  the  Roman  Law,  taken  from  Dr.  Taylor's  Elements  of  the  Civil 
Law,  page  26,  it  is  observed,  that  the  Responsa  Pntdentum  seem  to  amount 
to  what  we  call  Precedents,  or  Reports ;  that  it  is  common  to  them  both  to  be 
the  determinations  of  lawyers  to  explain  law  :  but  that  there  is  this  difference 
between  them,  that  our  precedents  owe  their  authority  to  their  being  the 
judgment  of  the  court ;  but  the  Responsa  Prudentum,  though  admitted  as  law, 
were  nothing  more  than  the  private  opinions  of  lawyers.  See  Cod.  lib.  1.  tit.  17, 
and  the  Cod.  Theo.  lib.  1.  tit.  4.  with  the  notes  of  Gothofred.  It  is  supposed, 
that,  in  the  early  days  of  the  Roman  Empire,  the  practice  of  the  law  was  merely 
honorary ;  but  it  soon  became  an  object  of  gain.  The  Cincian  law,  which 
was  passed  about  the  time  of  the  second  Punic  war,  was  intended  to  revive 
the  primitive  custom  of  honorary  advocation.  But  it  was  so  often  evaded, 
that  the  Emperor  Claudius  thought  it  more  advisable  to  moderate,  than  to 
attempt  to  destroy  entirely,  the  salaries  or  emoluments  of  advocates.  He 
accordingly  inhibited  them  from  taking  a  larger  fee  than  ten  sesterces,  about 
8W.  14s.  Id.  English.  The  advocates,  however,  thought  it  an  indignity,  that 
their  fees  should  be  considered  as  wages,  and  therefore  dignified  them  by  the 
honourable  title  of  presents,  or  gratuities ;  but  as  they  might  demand,  and 
even  maintain  an  action  for  their  fees,  this  distinction  was  merely  nominal. 
See  Gothofred  de  Salario,  and  Dr.  Beevor's  History  of  the  Civil  Law,  page  444. 
In  England  the  fees  of  counsel  are  honorary,  in  the  strict  acceptation  of  the 
word.  Thus  in  Moor  v.  Row,  Cha.  Rep.  38.  a  counsellor  brought  a  bill  for 
fees  due  to  him  from  the  defendant,  a  solicitor.  The  defendant  demurred ; 
the  demurrer  was  allowed,  and  the  bill  dismissed.  Sir  John  Davies  thus 
expresses  himself  upon  this  subject,  in  his  preface  to  his  Reports,  page  22,  23. 
"  The  fees  to  counsellors  are  not  in  nature  of  wages,  or  pay,  or  that  which  we 
"  call  salary,  or  hire,  which  are  duties  certain,  and  grow  due  by  contract,  for 
"  labour  or  service,  but  xoliat  is  given  him  is  honorarium,  not  merccs  ;  being  a 
"  gift  which  gives  honour  as  well  to  the  taker  as  the  giver  :  nor  is  it  certain  or 
"  contracted ;  for  no  price,  or  rate,  can  be  set  upon  counsel,  which  is  invalu- 
"able  and  inestimable,  so  as  it  is  more  or  less,  according  to  the  circum- 
"  stances,  namely,  the  ability  of  the  client,  the  worthiness  of  the  counsellor, 
"  the  weightiness  of  the  cause,  and  the  custom  of  the  country.  It  is  a  gift  of 
"  such  a  nature,  that  the  able  client  may  not  neglect  to  give  it  without  inora- 
"titude,  for  it  is  but  a  gratuity,  or  taking  of  thankfulness;  yet  the  worthy 
"  counsellor  may  not  demand  it  without  doing  wrong  to  his  reputation,  accordin"' 
"  to  that  moral  rule,  muita  honesta  accipi possunt  qua;  tamen  peti  non  jiossunt." 
In  France  the  Roman  law  respecting  the  fees  of  advocates  formerly  prevailed. 
Many  instances  are  found  in  their  law  books,  of  advocates  bringing  actions 
for  their  fees,  and  recovering  upon  them  :  but  this  has  long  fallen  into  disuse. 
In  the  contest,  in  177.5,  between  Mr.  Linguet  and  the  Order  of  Advocates, 
one  of  the  charges  against  him  was,  that  he  had  written  to  the  duke  d'Aiguillon, 
to  demand  his  fees;  and  threatened  him  with  an  action  for  them;  and  that  his 
demands  upon  the  duke  had  been  referred  to  arbitration.  See  Journal  His- 
torique  du  Retablissenient  de  la  Magistrature,  torn,  7.  p.  190,  Ordonnances 
have  been  made  at  different  times  enjoining  the  advocates  to  subscribe,  at 
the  foot  of  their  pleadings,  a  receipt  for  their  fees;  but  the  advocates  never 

would 


295.  a.  295.  b,]       Of  Keleases.       L.  3.  C.  8.  Sect.  514. 

10  H.  7.  IS.  In  debt  upon  a  penalty  given  by  statute,  the  defendant  shall 

not  wage  his  law.  There  is  another  kind  of  wager  of  law  in 
a  reall  action,  of  no7i  summons,  but  thereof  Littleton  speaketh 
not. 


"And  hereupon  TLer\e  justice  said,  <fcc."  Hereby,  it 
appeareth,  that  it  is  the  office  B@°"  of  the  judges  to  ["295.1 
instruct  the  grand  assise  or  jury  in  points  of  law ;  for  L  '^^  J 
as  the  grand  assise  or  other  jurors  are  triers  of  the 
matters  of  fact,  ad  questionem  facti  non  respondent  judices,  so 
ad  questionem  juris  non  respondent  juratores.  And  accordingly 
the  judge  in  this  case  directed  the  grand  assise,  viz.  if  they 
found  that,  &c. 

"  Whereby  it  was  aicarded."  Here  are  two  things  to  be  ob- 
served. First,  the  form  of  a  judgment  finall.  Secondly,  that  a 
judgement  finall  is  to  bee  given  in  this  particular  case.  For  the 
forme  of  the  finall  judgement  for  the  tenant  is  here  expressed, 
that  the  tenant  shall  hold  the  tenements  demanded  against  him, 
to  him  and  his  heires  quite  of  the  demandant  and  his  heires  for 
ever,  and  the  demandant  in  the  mercy.  Quod  tenens  teneat 
terram  illam  sibi  et  hseredibus  suis  in  pace  versus  petentem  & 
hseredes  suos  in perpetuum. 

For  the  second  point,  seeing  the  mise  is  joyned  upon  the 
meer  right,  albeit  the  verdict  of  the  grand  assise  be  given  upon 
another  point,  yet  judgement  finall  shall  be  given.  And  so  it  is 
if  the  tenant  after  the  mise  joyned  make  default,  or  confesse  the 
action,  or  if  the  demandant  be  non-suite ;  and  yet  in  none  of 
these  cases  they  of  the  grand  assise  gave  their  verdict  upon  the 
meere  right. 


Glanv.  li.  12. 
cap.  1,  <fec. 
Bracton,  li.  5. 
fo.  328. 


Lib.  5.  foL  85. 
Penrin's  case. 


34  E.  3.  Judgm. 
256.  adjudge 
accord.  13  H.  4. 
Judgm.  245. 
10  H.  6.  8. 

20  H.  6.  38.  b. 

21  H.  6.34  b. 
26  H.  8.  8.  b. 

1  Mar.  Dy.  98. 
Li.  5.  fo.  85. 
Penrin's  case. 
r.N.B.5.11.31. 


"  As  it  is  said  before."     Vid.  Sect.  478. 


Chap. 


would  obey  them.  The  leading  ordonnance  upon  this  head  is  that  of  Blois. 
In  1602,  the  parliament  of  Paris  gave  an  arret,  enforcing  the  observance  of 
that  ordonnance.  This  gave  the  advocates  so  much  offence,  that  three  hun- 
dred of  them  renounced  their  profession  upon  it,  with  the  usual  formalities. 
This  put  an  entire  stop  to  the  proceedings  of  the  courts  of  justice.  The  matter 
was  afterwards  settled;  and  the  ordonnance  of  Blois,  in  this  respect,  and  the 
subsequent  ordonnances  enforcing  it,  are  now  considered  as  virtually  repealed. 
See  Loysel,  Dialogue  des  Avocats;  and  Menayii  Juris  Civilis  Amoenitates, 
cap.  18.— [Note  252.] 


L.  3.  C.  9.  Sect.  515.     Of  Confirmation.  [295.  b. 


Chap.  9.  Of  Confirmation.  Sect.  515. 

ADEEDE  of  confirmation  is  commonly  in  this  forme,  or  to  this 
eifect :  Knoio  all  men^  ^c.  that  J,  A.  of  B.  have  ratified,  approved, 
and  confirmed  to  C.  of  J),  the  estate  and  possession  which  (A)  I  have,  of, 
and  in  one  messuage,  <f-c.  with  the  appurtenances  in  F.  S^-c.  (Noverint 
universi,  &c.me  A.  de  B.  ratificasse,  approbasse,  et  confirmasse  C.  de  D. 
statum  &  possessionem,  quos  habeo,  de,  &  in  uno  messuagio,  kc.  cum 
pertinentibus  in  F.  &c.) 

HERE  fii-st  our  author  shewes  what  a  confirmation  is :  Bract,  li.  2.  fol. 

32.  b.  &  58,  59. 
,      „  ,  ,      ^*T  Brit.  235. 

"  Confirmation."    Confirmatio  commeth  of  the  verbe  ['^J  con-  [»]  Lit.pag. 
firmare,  quod  est  firmum  facere :  and  therefore  it  is  said,  that  sequen. 
confirmatio  omnes  supj)let  defectus  licet  id  quod  actum  est  ah  in-  ^'■'*'''-  ^*-  -•  ^^• 
itio,  non  valuit.     A  confirmation  is  a  conveyance  of  an  estate  or 
right  in  esse,  whereby  avoidable  estate  is  made  sure  and  unavoid- 
able, or  whereby  a  particular  estate  is  encreascd. 

-A  confirmation  doth  not  strengthen  a  voide    estate.      Con-  Bract,  li.  2. 
firmatio  est  nulla   uhi  donum  prsecedens  est  invalidum,  &  tibi  ^^^'■^^'^'q^^'    07 
donatio  nidla  omnino  nee  valehit  confirmatio  :  for  a  confirmation  'pj_  ^^^^ 
may  make  a  voidable   or  defeasible  estate   good,  but  it  cannot  Count  do 
worke  upon  an  estate  that  is  voide  in  law.    Non  valet  confirmatio  ]'^^^^^^'^'l  *!^®®- 
nisi  ille  qui  confirmat  sit  in  possessione  rei,  vel  juris  unde  fieri  jq  e!^. 
debet  confirmatio,  &  eodem  modo  nisi  ille  cut  confirmatio  sit,  sit  Confirm.  24. 
in  possessione.     Aud  another  saith,  [c]  Confirmare  est  id  quod  32  E.  3.  9. 
prias  infirmum  fuit firmare.    Et  donatiomim  alia  incepta,  &  de-  W^^  14^*4 i\b".  3". 
fectiva,  &  post  tempus  confirmata,  confirmatio  enim  omnem  sup-  cap!  3." 
plet  defectum,  poter it  enim  esse  inpendenti  donee  per  ratihabitio- 
ncm  haeredis  cum  ad  aetat  em  pervenerit  roboretur  (1). 

"  Ratificasse."    Ratificare  est  ratum  facere,  and  is  seqiu'pollent  44  Ass.  3. 
to  confirmare,  which,  as  hath  been  said,  is  firmum  facere. 

"  Ajyjyrohassr"  commeth  of  ad  audi  probo,  which  is   to   make 
perfect  and  good. 

"  Confirmasse."     Here  it  is  to  be  observed,  that  there  be  two 
kinds  of  confirmations,  viz.  confirmations  expresse  or  in  deed, 

whereof 

(A)  It  seems,  that  the  text  should  be  read  as  !/  L  ittleton  had  in  this  place  used  the  words 
"he  hath,"  iitatead  of  "  I  have."     See  Mr.  liitso's  Intr. 

(1)  A  confirmation  is  an  approbation  of,  or  assent  to,  an  estate  already 
created ;  by  which  the  confirmor  strengthens  and  gives  validity  to  it,  as  far  as 
it  is  in  his  power.  It  has  this  operation  only,  with  respect  to  estates  voidable 
or  defeasible  :  but  it  has  no  operation  upon  estates  which  are  absolutely  void. 
Such  words  may  be  used  in  a  confirmation  as  may  increase  or  enlarge  the 
estate;  but  that,  as  lord  chief  baron  Gilbert  observes,  is  by  the  force  of  those 
words,  and,  strictly  speaking,  is  foreign  to  the  confirmation.  Gilb.  Ten.  75. 
—[Note  253.] 


295.  b.  296.  a.]   Of  Confirmation.  L.  3.  C.  9.  Sect.  516. 

whereof  Littleton  hath  here  put  these  three  examples,  and  con- 
firmations implied,  or  in  law,  whereof  Littleton,  hereafter  speaketh 
Li.  9.  fo.  142.       in  this  chapter.    Quielihet  confirmatio,  aut  est perficiens,  cresens, 
Beaumond's         aiit  diminuens  ;  and  of  all  these,  Zr«/e/on  putteth  examples  in 
'*s®-  this  chapter.     And  hereof  Fleta  saith  carta  antem  de  conjirma- 

Flet.  li.  3.  tione  est  ilia  quse  alterius  factum  consolidat  &  confirmat,  &  nihil 

cap.  14.  novi  attrihuit,  quandoque  tanien  covfirmat  &  addit  (2). 


Sect.  516.  [20«-] 


j^ND 


in  some  case  a  deede  of  confirmation  is  good  and  available, 
where  in  the  same  case  a  deede  of  release  is  not  good  or  availeahle. 
As  if  I  let  land  to  a  man  for  terme  of  his  life,  who  letteth  the  same  to 
another  for  terme  of  forty  year  es,  by  force  of  which  he  is  in  possession  ;  if 
I  by  my  deed  confirme  the  estate  of  the  tenant  for  yeares,  and  after  the 
tenant  for  life  dieth  during  the  terme  of  *  yeares,  I  cannot  enter  into  the 
land  during  the  said  terme. 

49  E.  3.  32,  T  ITTLETON  in  this  chapter  putteth  eight  diversities  be- 

tweene  a  confirmation   and   a  release  (1);  and  thereof  for 
illustration  here  hee  putteth  two  cases  in  this  and  the  next  Sec- 
tion, which  upon   that  which  hath  beene  said  in  the  precedent 
chapters,  is  suflaciently  explained.     Onely  in  both  these  cases 
482^)°"  ^^^'       *^^^  ^^  *^  ^^  observed,  that  where  a  confirmation  shall  enlarge 
an  estate,  there  privity  is  required,  as  well  as  in  the  case  of  the 
9  H.  6.  22.  tit.      release,  as  by  many  examples  which  Littleton  puts  in  this  chap- 
Release,  44.        ter  appeareth.     And  note,  here  is  the  first  case   wherein   a  re- 
lease and  a  confirmation  doe  difi'er  : 
(Cro.  Car.  284.         Lessee  for  life  made   a  lease  for  thirty  yeares,  and  after  the 
1  RoU.Abr.  483.  lessor  and  lessee  for  life  made  a  lease  of  sixty  yeares  to  another, 
500.    Mo.  67.      ^iiich   lease  for  sixty  yeares  the  lessor  did  first  confirme,  and 
Hokl65.    "        after  the  lessor  confirmed  the  lease  for  thirty  yeares,  and   after 
Post.  310.  a.)       tenant  for  life   dyed  within  the  thirty  yeares ;  and  it  was  ad- 
[rf]  Inter  Unwel  j^(Jo■ecl  [r/],  that  the  lease  for  thirty  yeares  was   determined  by 
Reg!*Elfz.*^°^^'    the'death  of  lessee  for  life,  and  that  the  lessee  for  sixty  yeares 
(Hoi).  7.)'  might  enter;  for  that  albeit  the  lease  for  sixty  yeares  was  the 

latter  in  time,  yet  was  it  of  greater  force  in  law,  for  that  the 
lessor  who  had  power  to  confirme  which  of  them  he  would,  did 
first  confirme  the  second  lease. 

In  this  chapter  is  also  to  be  observed  eight  cases,  wherein  a 
release  and  confirmation  have  the  like  operation  in  law. 

Sect. 

*  forty  added  in  L.  and  M.  and  Rob. 


(2)  See  9  Rep.  142.  where  Sir  Edward  Coke  brings  examples  of  these  dif- 
farent  operations  of  a  confirmation. 

(1)  He  also  mentions  eight  instances  in  which  they  agree. 


L.  3.  C.  9.  S.  517-18-19.  Of  Confirmation  [296.  a.  296.  b. 


Sect.  517. 

VET  if  I  hy  my  deed  of  release  had  released  to  the  tenant  for  yeares 
in  the  life  time  of  the  tenant  for  life,  this  release  shall  be  voide,  for 
that  then  there  ivas  not  any  privity  between  me  and  the  tenant  for  yeares 
(pur  ceo  que  adonques  ne  fuit  aseun  privity  perenter  f  moy  et  le  tenant 
a  terme  d'ans) :  for  a  release  is  not  available  to  the  tenant  for  yeares^ 
hut  where  there  is  a  privitie  between  him  and  him  that  releaseth  (2). 

This  belongeth  to  the  first  diversity  between  a  release  and  a  confirmation. 


[^^^•]  m^  Sect.  518. 

TN  the  same  manner  it  is  if  I  be  disseised,  afid  the  disseisor  make  a  lease 
to  another  for  term  of  yeares,  if  I  release  to  the  termor,  this  is  void; 
but  if  I  confirme  %  the  estate  of  the  termor ^  this  is  good  and  effectuall. 

HERE  is  the  second  diversitie  betweene  a  release  and  a  con- 
firmation.    But  if  the  disseisor  make  a  lease  for  yeares  to 
begin  at  Michaelmasse,  and  the  disseisee,  confirme  his  estate,  this  4  H.  7. 10. 
is  voide,  because  he  hath  but  interessc  termini,  and  no  estate  in  22  E*^4  36. 
him,  whereupon  a  confirmation  may  enure. 


Sect.  519.  (5  Rep.  81.) 

ALSO,  if  I  be  disseised,  and  I  confirme  the  estate  of  the  disseisor,  hee 

hath  a  good  and  rightful  estate  in  fee  simple,  albeit  in  the  deede  of 

confirmation  710  mention  be  made  of  his  heires,  because  hee  had  fee  simple 

at 

f  noyet  le  tenant  a  terra  d'ans, —         Xtlie  estate  of  the  termor, — his  estate, 
luy  et  moy,  L.  and  M.  and  Roh.  L.  and  M.  and  Roh. 


(2)  For  in  this  case,  if  the  lessor  release  to  the  lessee  for  years,  without 
using  any  further  words,  the  operation  of  the  release  would  be  to  enlarge  the 
estate  of  the  lessee  by  giving  him  an  estate  of  freehold  for  his  life.  Now  to 
mt^ke  releases  operate  in  this  manner,  it  is  necessary  not  only  that  the  releasee, 
at  the  time  the  release  is  made,  should  be  in  the  actual  possession  of,  or  have  a 
vested  interest  in,  the  lands  intended  to  be  released,  but  that  there  should  be  a 
privity  between  him  and  the  releasor.  In  the  case  mentioned  by  Littleton, 
there  is  no  privity  between  the  donor  and  the  lessee  of  the  donee  for  life.  A 
release  therefore  from  the  donor  to  the  lessee  would  be  void.  But  a  confirma- 
tion by  the  donor  is  good,  and  gives  a  stability  and  permanency  to  the  estate 
of  the  lessee  during  the  whole  term,  which  would  otherwise  determine  by  the 
decease  of  the  donee.     Ant.  272.  a.  273.  b.— [Note  254.] 


296.  b.  297.  a.]    Of  Confirmation.    L.  3.  C.  9.  Sect.  520. 

at  the  time  of  the  confirmation.  For  in  such  case  if  the  disseisee  eonfirme 
the  state  of  the  disseisor,  to  have  and  to  hold  to  him  and  his  heires  of  his 
body  engendered,  or  to  have  and  to  hold  to  him  for  term  of  his  life,  yet  the 
disseisor  hath  a  fee  simple,  and  is  seised  in  his  demesne  as  of  fee,  because 
when  his  estate  tvas  confirmed,  he  had  then  a  fee  sim'ple,  and  such  deed 
cannot  change  his  estate,  without  entry  \\  made  upon  him,  ^c. 

HERE  is  the  first  case  wherein  the  release  and  confirmation 
doth  agree  viz.  a  confirmation  to  a  disseisor  in  taile,  or  for 
19  H.  6.  22.  any  particukir  estate,  is  of  the  like  force  as  a  release  to  a  disseisor, 
Confirm  4  during  such  estate  which  in  both  cases  is  good  for  ever.     In  the 

same  manner  it  is,  if  the  disseisor  make  a  gift  in  taile,  and  the 
disseissee  eonfirme  the  estate  of  the  donee  for  the  life  of  the  donee 
this  confirmation  enures  to  the  whole  estate  taile  ;  for  a  confir- 
mation can  make  no  fraction  of  any  estate,  to  extend  but  to  part 
of  the  estate  only.     Ut  sic  de  cceteris  (1). 


B@^  Sect.  520.  [^^J'] 

TN  the  same  manner  it  is,  if  his  estate  bee  confirmed  for  terme  of  a  day 

or  for  terme  of  an  houre,  he  hath  a  good  estate  in  fee  simple,  for 

this,  that  his  estate  in  fee  simple  was  once  confirmed  (pur  ceo  que  *  son 

estate  en  fee  simple  fuits  un  foits  eonfirme.)     Quia  confirmare  idem  est, 

quod  firmum  facere,  &c. 

HERE  is  the  second  case  wherein  the  release  and  confirma- 
tion doe  agree.  The  reason  of  this  is,  for  that  the  disseisor 
hath  a  fee  simple ;  and  therefore  if  his  estate  be  confirmed  but 
for  an  houre,  it  is  good  for  ever,  because  (saith  Littleton)  confir- 
mare idem  est,  quod  firmum  facere. 

Nota,  a  diversity  betweene  a  bare  assent  without  any  right  or 

interest,  and  an  assent  coupled  with  a  right  or  interest  :  and 

Lib.  5.  fol.  81.       therefore  an  attornement  cannot  be  made  for  a  time  nor  upon 

iTv' n',^t^'^\       condition  :  but  if  the  person  make  a  lease  for  a  hundred  yeares, 

(Ant.  274.  a.)  ,  '         ,      ,  ^,.  „  oc         f     ^ 

(Post.  300.  b.)     the  patron  and  the   ordmary  may  conurme  titty  oi   the  yeares, 

for  they  have  an  interest,  and  may  charge  in  time  of  vacation. 

And  so  if  a  disseisor  make  a  lease,  for  an  hundred  yeares,  the 

disseisee  may  eonfirme  parcel  of  those  yeares;  but  then  it  must 

be  by  apt  words,  for  he  must  not  eonfirme  the  lease,  or  demise, 

or  the  estate  of  the  lessee,  for  then  the  addition  of  parcell  of  the 

terme  should  be  repugnant  when  the  whole  was  confirmed  before, 

(1  Roll.  Abr.        but  the  confirmation  must  be  of  the  land  for  part  of  the  terme. 

*12.)  So  may  the  confirmation  be  of  part  of  the  land  ;  as  if  it  be  of 

forty 

[|  made  not  in  L.  and  M.  or  Roh.         *  son  not  in  L.  and  M.  or  Boh. 


(1)  It  is  to  be  observed,  that  a  disseisor  acquires  by  the  disseisin  a  tor- 
tious fee  simple,  notwithstanding  at  the  time  he  makes  the  disseisin  ho  claims 
a  less  estate;  it  being  a  rule,  that  a  disseisor  cannot  qualify  his  own  wrong. — 
[Note  255.] 


L.  3.  C.  9.  Sect.  521.     Of  Confirmation.  [297.  a. 

forty  acres,  he  may  confirme  twenty,  &c.  So  if  tenant  for  life 
make  a  lease  for  an  hundred  yeares,  the  lessor  may  confirme 
eyther  for  part  of  the  terme,  or  for  part  of  the  land.  But  an 
estate  of  free-hold  cannot  bee  confirmed  for  part  of  the  estate, 
for  that  the  estate  is  intire,  and  not  severall,  as  yeares  be  (1). 


Sect.  521. 

ALSO,  if  my  disseisor  maJceth  a  lease  for  life,  the  remainder  over  in 
fee,  if  I  release  to  the  tenant  for  life,  this  shall  enure  to  him  in  tlie 
remainder.  But  if  I  confirme  the  estate  of  the  tenant  for  tearme  of  life, 
yet  after  his  decease  I  may  well  enter,  because  nothing  is  confirmed  but 
the  estate  of  the  tenant  for  life  (pur  ceo  que  *  riens  est  confirme  forsque 
Testate  le  tenant  a  terme  de  vie),  so  that  after  his  decease  I  may  enter. 
But  when  I  release  all  my  right  to  the  tenant  for  life,  this  shall  enure 
to  him  in  the  remainder  or  in  the  reversion,  because  all  my  right  is  gone 
by  such  release.  But  in  this  case,  if  the  disseisee  confirme  the  estate  and 
title  of  him  in  the  remaiiider  without  any  confirmation  made  to  tenant 
for  life,  the  disseisee  cannot  enter  upon  the  tenant  for  terme  of  life,  for 
that  the  remainder  is  depending  upo7i  the  state  for  life  ;  and  if  his  estate 
should  be  defeated,  the  remainder  should  be  defeated  by  the  entry  of  the 
disseisee,  and  it  is  no  reason  that  he  by  his  entry  should  defeat  the  re- 
mainder against  his  confirmation,  S^c. 

HERE  is  the  third  case  wherein  the  release  and  confirmation 
differ,  for  the  confirmation  to  the  tenant  for  life  doth  not 
enure  to  him  in  the  remainder. 

And  so  it  is  when  the  severall  estates  be  in  one  person ;  as 
if  the  disseisor  make  a  gift  in  taile,  the  remaynder  to  the  right 
heires  of  tenant  in  taile,  if  the  disseisee  confirme  the  estate  in 

taile, 

*  nul  added  in  L.  and  M.  and  Eoh. 


(1)  The  distinctions  taken  here  by  sir  Edw.  Coke  are,  that  a  confirmation 
to  a  tenant  of  freehold  or  inheritance,  cannot  be  so  worded  as  to  have  a  less 
operation  than  that  of  confirming  his  whole  estate;  consequently  a  confirma- 
tion to  such  a  tenant,  either  of  the  lands,  or  of  his  estate  in  them,  for  any 
term  or  period,  is  a  confirmation  of  his  whole  fee.  A  disseisor  always  acquires 
by  the  disseisin  a  tortious  fee  simple ;  a  confirmation  therefore  to  him,  however 
qualified,  is  a  confirmation  of  his  whole  fee.  It  is  otherwise  in  the  case  of  a 
term  of  years.  A  confirmation  may  be  made  of  part  of  the  term  only.  The 
reason  of  this  difference  is,  that  an  estate  of  freehold  or  of  inheritance  is  con- 
sidered as  integral  and  indivisible.  But  as  years  are  several,  the  term  which 
is  composed  of  them  is  necessarily  fractional  and  divisible,  and  may  consequently 
be  confirmed  in  part  only,  by  using  proper  expressions  for  this  purpose.  If  a 
person  confirms  the  estate  of  the  tenant  for  years  for  part  of  the  term,  as  the 
word  estate  signifies  all  the  interest  or  term  of  years  which  the  tenant  has,  the 
subsequent  words  are  not  considered  as  qualifications  of  the  former  words,  but 
as  absolutely  repugnant  to  them ;  and  as  both  cannot  stand  together,  the  law 
prefers  the  first,  which  are  the  principal,  to  the  other,  which  are  only  second- 
ary.—[Note  256.] 


297.  a.  297.  b.]    Of  Confirmation.     L.  3.  C.  9.  Sect.  521. 

taile,  it  shall  not  extend  to  the  fee  simple,  no  more  than  if  the 
disseisor  had  made  a  gift  in  taile,  the  remainder  for  life,  the 
remainder  to  the  right  heires  of  tenant  in  taile;  this 

(Ant.  52.  a.)        extendeth  onely  to  the  estate  taile,  and  not  B®"  to  the   r^OT'.'! 

(Post.  310.  a.       remainder  for  life,  nor  to  the  remainder  in  fee.    But  if  L     t).     J 

fl  Roll^Abr^       *^^  disseisor  make  a  lease  for  life  to  A.  and  B.  and  the 

302.)  disseisee  confirme  the  estate  of  A.,  B.  shall  take  advantage 

thereof;  for  the  estate  oi  A.  which  was  confirmed  was  joynt  with 
B.  and  in  that  case  the  disseisee  shall  not  enter  into  the  land, 
and  divest  the  moity  of  B. 

(Sid.  8.3.)  If  the  disseisor  infeoffs  A.  and  B.  and  the  heires  of  B.  if  the 

disseisee  confirme  the  estate  of  B.  for  his  life,  this  shall  not 
only  extend  to  his  companion,  as  hath  beene  said,  but  to  his 
whole  fee  simple,  because  to  many  purposes  hee  had  the  whole 

(1  Cro.  321.)        fee  simple  in  him,  and  the  confirmation  shall  bee  taken  most 

(Ant.  182.)  strong  against  him  that  made  it. 

Tenant  in  tayle  discontinueth  in  fee  and  dyeth,  the  discon- 
tinuee  make  a  lease  for  life,  and  granteth  the  reversion  to  the 
issue,  he  shall  not  have  a  formedon  against  tenant  for  life ;  for 
by  his  formedon  he  must  recover  the  estate  of  inheritance,  and 
the  lessee  for  life  hath  not  the  inheritance,  but  the  issue  in  taile 
himselfe  hath  it. 

(Ant.  202.  a.)  ^^  feoffee  upon  condition  make  a  lease  for  life,  or  a  gift  in 

taile,  and  the  feoffor  release  the  condition  to  the  feoffee,  he 
shall  not  enter  upon  the  lessee  or  donee,  because  he  cannot 
regaine  his  ancient  estate. 

If  the  feoffee   upon  condition  make  a  lease  for  life,  the  re- 
mainder in  fee,  if  the  feoffor  release  the  condition  to  the  lessee 
^  for  life,  it  shall  enure  to  him  in  the  remainder;  as  well  as  in  the 
case  of  the  right,  or  of  a  rent,  &c. 

If  a  feme  disseisoresse  make  a  feoffment  in  fee  to  the  use  of 

A.  for  life,  and  after  to  the  use  of  herselfe  in  taile,  and  the 
remainder  to  the  use  of  B.  in  fee,  and  then  taketh  husband  the 
disseisee,  and  he  releaseth  to  A.  all  his  right,  this  shall  enure  to 

B.  and  to  his  own  wife  also;  for  by  the  rule  of  Littleton  it  must 
enure  to  all  in  the  remainder  (1). 

But  if  A.  letteth  to  B.  for  life,  and  B.  maketh  a  lease  to  C. 
for  his  life,  the  remainder  to  A.  in  fee,  A.  releaseth  to  C.  all  his 
right,  this  is  good  to  perfect  the  estate  of  C.  for  his  life.  But 
when  C.  dyeth,  A.  shall  be  in  of  his  old  estate,  for  his  release 
could  not  enure  to  hiuiselfe  to  perfect  his  defeasible  remainder, 
but  his  ancient  right  remaineth.  And  note,  that  in  these  two 
cases  the  fee  is  divested  and  vested  all  at  one  instant ;  in  the 
same  manner  as  if  tenant  in  taile  make  a  lease  for  life,  at  the 
same  instant  the  estate  taile  is  devested  out  of  the  donee,  and 
the  reversion  in  fee  out  of  the  donor,  and  a  new  fee  vested  in 
tenant  in  taile.  And  so  if  the  husband  make  a  lease  for  life  of 
his  wife's  land,  ho  devesteth  his  owne  estate,  that  he  hath  in  her 
right,  and  the  inheritance  of  his  wife,  and  at  the  same  instant 
vesteth  a  new  reversion  in  fee  in  himselfe. 

"  Bui 


(1)  For  though  a  man  cannot  contract  with  his  wife,  or  transfer  any  inte- 
rest to  her,  yet  she  may,  by  construction  of  law,  take  benefit  of  a  release  made 
by  him  to  a  third  person,  and  enuring  by  way  of  extinguishment.  Hawk. 
Abr.— [Note  257.] 


L.  3.  C.  9.  Sect.  521.   Of  Confirmation.     [297. 1).  298.  a. 

"But  in  this  case,  if  the  disseisee  cortfirme  the  estate  and  title  Vid.  29  Ass.  17. 
of  him  in  the  remainder."     Here  is  the  third  case  r,^  *     „„  „„i„„ 

tc\r\a  L        •       1  1  1  r>  1  !•       ivecov.  en  value. 

i*yo.  I  wherein  the  release  and  confirmation  doe  agree,  B@^  tor  Br.  30.  13  E.  3. 
a.     J  the  confiuiation  made  to  him  in  the  romaiuder  shall  Entr.  Coug. 
availe  the  tenant  for  life,  as  much  as  the  release  shall.  J'  ^        y.  , 

'  ri.    Com.    Dela- 

mere's  case.    Vid.  Sect.  374. 

"For  that  the  remainder  is  depending,  &c."     By  this  some  (Mo.  91.) 
have  gathered,  that  if  a  desseisor  make  a  lease  for  life,  reserving 
the  reversion  to  himselfe,  and  the  disseisee  confirmeth  the  state 
of  the  disseisor,  that  he  may  enter  upon  the  lessee,  because  the 
estate  of  him  in  the  reversion  dependeth  not  upon  the  state  for 
life  as  the  remainder :  but  all  is  one,  for  by  the  confirmation 
made   to  him  in  the  reversion,  all  the  right  of  him  that  con- 
firmeth is  gone,  as  well  as  when  he  maketh  it  to  him  in  remainder; 
and  he  cannot  by  his  entry  avoide  the  estate  of  the  lessee  for  Reported  by  sir 
life,  but  he  must  avoide  the  state  of  the  lessor,  which  again.st  ^°|'":  P«pham, 
his  own  confirmation  he  cannot  doe;  and  it  hath  been  adjudged,  (Post.  302.  a.) 
that  if  a  disseisor  make  a  lease  for  life,  and  after  levie  a  fine  of  (6  Rep.  40.) 
the  reversion  with  proclamations,  and  the  five  years  passe,  so  as  (^'^-  "^^'^'^.q 
the  disseisee  is  for  the  reversion  barred,  he  shall  not  enter  upon  150.  Ant.  224. 
the  lessee  for  life.  a.) 

"  The  remainder  should  he  defeated."  It  is  regularly  true, 
that  when  the  particular  estate  is  defeated,  that  the  remainder 
thereby  shall  be  also  defeated,  but  it  faileth  in  divers  cases. 

For  where  the  particular  estate  and  the  remainder  depend  vid.  PI.  Com. 
upon  one  title,  there  the  defeating  of  the  particular  estate  is  Colthinst's  case. 
a  defeating  of  the  remainder.  But  where  the  particular  estate  (^'^®'-  '^^^'  *•  ^'^ 
is  defeasible,  and  the  remainder  by  good  title,  there  though  the 
particular  estate  be  defeated,  the  remainder  is  good.  As  if  the 
lessor  disseise  A.  lessee  for  life,  and  make  a  lease  to  B.  for 
the  life  of  A.  the  remainder  t»  C.  in  fee,  albeit  A.  re-enter,  and 
defeate  the  estate  for  life,  yet  the  remainder  to  C.  being  once 
vested  by  good  title  shall  not  be  avoided :  for  it  were  against 
reason  that  the  lessor  should  have  the  remainder  againe,  against 
his  own  liverie;  and  this  is  well  warranted  by  the  reason  of 
Littleton  in  this  case.  So  it  is  if  a  lease  be  made  to  an  infant 
for  life,  the  remainder  in  fee,  the  infant  at  his  full  age  disagree 
to  the  estate  for  life,  yet  the  remainder  is  good,  for  that  i^was 
once  vested  by  good  title;  for  in  both  these  cases  there  was 
a  particular  estate  at  the  time  of  the  remainder  created. 

If  a  lease  be  made  to  A.  for  the  life  of  B.  the  remainder  to  C.  17  E.  3.  48. 
in  fee,  A.  dyeth  (A)  before  an  occupant  entreth,  here  is  a  re- 
mainder without  a  particular  estate,  and  yet  the  remainder  con- 
tinueth  good  (1). 

A  rent  is  granted  to  the  tenant  of  the  land  for  life,  the  re-  3  E.  3.  Abb.  Ass. 
mainder  in  fee,  this  is  a  good  remainder,  albeit  the  particular  y^y^jj  200. 

Moore,  664.  Yelv.  9.  2  Roll.  Abr.  415.  7  U.  4.  6.  1.  Rep.  66.  Noy,  47^'.)  7  II."  4.  6. 

estate 

(A)  Here  the  sense  of  the  text  appears  to  require  a  semicolon.     See  Mr.  Ritao's  Intr. 
p.  116,  117. 

(1)  But  since  the  stat.  29  Car.  2.  c.  3.  §  12.  and  14  Geo.  2.  c.  20.  §  9.  no  such 
vacancy  can  happen.  Vid.  ante,  n.  5. 41.  b,  and  Atkinson  v.  Baker,  4  T.  R.  230. 


298.  a.]  Of  Confirmation.        L.  3.  C.  9.  Sect.  521. 

estate  continued  not;  for  eo  instante  that  he  tooke  the  particular 
estate,  eo  instante  the  remainder  vested,  and  the  suspension 
in  judgement  of  law  grew  after  the  taking  of  the  particular 
estate  (2). 

If 


(2)  A  rent  is  an  incorporeal  hereditament,  and  susceptible  of  the  same  limi- 
tations as  other  hereditaments.  Hence  it  may  be  granted,  or  devised,  for  life, 
or  in  tail,  with  remainders  or  limitations  over.  But  there  is  this  diflPerence  be- 
tween an  entail  of  lands  and  an  entail  of  rent;  that  the  tenant  in  tail  of  lands, 
with  the  immediate  reversion  in  fee  in  the  donor,  may,  by  a  common  recovery, 
bar  the  entail  and  the  reversion;  whereas  the  grantee  in  tail  of  a  rent  de  novo, 
without  a  subsequent  limitation  of  it  in  fee,  acquires,  by  a  common  recovery, 
only  a  base  fee,  determinable  upon  his  decease,  and  failure  of  the  issues  in  tail; 
but  if  there  is  a  limitation  of  it  in  fee,  after  the  limitation  in  tail,  the  recovery 
of  the  tenant  in  tail  gives  him  the  fee  simple.  This  was  resolved  in  the  cases  of 
Smith  V.  Farnaby,  Carter,  52.  Sid.  285.  and  2  Kib.  29.  55.  84.  Weekes 
V.  Peach,  2  Lutw.  1218.  1224.  and  Chaplin  v.  Chaplin,  3  P.  Wms.  229. 
The  reason  of  this  difference  is,  that  it  would  be  unjust  that  the  conveyance 
of  a  grantee  of  a  rent  should  give  a  longer  duration  or  existence  to  the  rent, 
than  it  had  in  its  original  creation.  It  is  true,  that  the  barring  of  an  estate 
tail  in  land  is  equally  contrary  to  the  intention  of  the  grantor.  But  a  rent 
differs  materially  from  land.  The  old  principles  of  the  feudal  law  looked 
upon  every  modification  of  landed  property,  which  was  considered  to  be  against 
common  right,  with  a  very  jealous  eye.  Now,  a  rent-charge  was  supposed  to 
be  against  common  right,  the  grantee  of  the  rent-charge  being  subject  to  no 
feudal  services,  and  being  a  burthen  upon  the  tenant  who  was  to  perform  them. 
Upon  this  principle,  the  law,  in  every  instance,  avoided  giving  by  implication  a 
continuation  to  the  rent  beyond  the  period  expressly  fixed  for  its  continuance. 
Thus  if  a  tenant  in  tail  of  land  die  without  issue,  his  wife  is  entitled  to  dower 
for  her  life  out  of  the  land,  notwithstanding  the  failure  of  the  issue;  but  the 
widow  of  a  tenant  in  tail  of  rent  is  not  entitled  to  her  dower  against  the  donor. 
So  if  a  rent  is  granted  to  a  man  and  its  heirs  generally,  and  he  dies  without  an 
heir,  the  rent  does  not  escheat,  but  sinks  into  the  land.  It  is  upon  this  principle, 
that  when  there  is  not  a  limitation  over  in  fee,  a  tenant  in  tail  of  rent  acquires, 
by  his  recovery,  no  more  than  a  base  fee.  But  if  there  is  a  limitation  in  fee, 
after  the  particular  limitation  in  tail,  the  grantor  has  substantially  limited  the 
rent  in  fee;  and  therefore,  it  is  doing  him  no  injustice  that  the  recovery  should 
give  the  donee,  who  suffers  it,  an  estate  in  fee  simple.  The  case  of  Chaplin 
V.  Chaplin  was,  tha*  lady  Handy,  the  grandmother  of  Porter  Chaplin,  being 
seised  in  fee,  conveyed  divers  lands  to  the  use  and  intent  that  the  trustees 
named  in  the  deed,  should  receive  and  enjoy  a  rent-charge  of  30^.  per  ann.  to 
them  and  their  heirs,  with  power  to  distrain  for  it,  and  to  enter  and  hold  the 
land  on  non-payment  for  forty  days;  and  then  the  rent  was  declared  to  be  to 
the  use  of  Porter  Chaplin  in  tail;  remainder  to  the  use  of  the  same  person  who 
had  the  land  in  fee.  It  is  stated  to  have  been  afterwards  disclosed  to  the  court, 
that  the  legal  estate  of  the  rent  in  fee  was  in  the  trustees.  But  it  is  worthy  of 
the  attention  of  the  reader,  that  it  was  not  necessary  that  any  new  matter  should 
be  adduced  to  disclose  this  to  the  court,  as  it  appears  on  the  face  of  the  deed; 
for  a  conveyance  to  A.  and  his  heirs  to  the  use  and  intent  that  B.  and  his 
heirs  may  receive  a  rent  out  of  the  estate,  gives  B.  the  legal  fee  of  the  rent; 
so  that  if  it  is  afterwards  declared,  that  B.  and  his  heirs,  are  to  stand  seised 
of  the  rent  to  uses,  the  intended  cestuys  que  xise  take  only  trust  or  equitable 
estates.  If,  therefore,  it  is  intended  to  limit  a  rent  in  strict  settlement,  it 
is  necessary  to  do  it  by  way  of  grant  at  common  law,  to  some  person  and 
his  heirs,  to  the  uses  intended  to  be  limited.     This  gives  the  grantee  the  mere 

seisin 


L.  3.  C.  9.  Sect.  522.    Of  Confirmation.  [298.  a. 

If  a  man  grant  a  rent  to  B.  for  the  life  of  Alice,  the  remainder 
to  the  heires  of  the  body  of  Alice,  this  is  a  good  remainder,  and 
yet  it  must  vest  upon  an  instant  (3). 


Sect.  522. 


ALSO,  if  there  bee  two  disseisors,  and  the  disseisee  releaseth  to  one  of 
them,  he  shall  hold  his  companion  out  of  the  land.  But  if  the 
disseisee  confirm  the  estate  of  the  one,  without  more  saying  in  the  deede 
(sans  pluis  *  dire  en  le  fait),  some  say  that  hee  shall  not  hold  his  com- 
panion out,  but  shall  hold  joyntly  with  him,  for  that  nothing  was  con- 
firmed but  his  estate  ivhich  was  joynt  (pur  ceo  que  f  riens  fuit  confirme 
forsque  son  estate  que  fuit  joynt),  ^c. 

THIS  is  the  fourth  case  wherein  the  release  and  the  con- 
firmation seeme  to  differ,  being  made  unto  one  of  the  dis- 
seisors. 

"  Confirmed  hut  his  estate,  &c."  Hereby  it  appeareth,  that  if 
the  disseisee  confirme  the  estate  of  the  one  disseisor  in  the  lands, 
to  have  and  to  hold  the  lands  or  tenements,  or  the  right  of  the 
disseisee,  to  him  and  his  heires,  hee  shall  hold  out  the  other 
disseisor;  and  that  appeareth  by  Littleton,  first,  upon  these  words 

{confirme 

*  dire — parlance  L.  and  31.  and  "f  nul  added  in  L.  and  M.  and  Roh. 

Roh. 


seisin  to  the  uses,  and  the  uses  declared  upon  it  will  be  executed  by  the  statute. 
See  note  on  Uses,  272.  a.  VII.  3.— [Note  258.] 

(3)  Formerly  the  doctrine  of  the  necessity  that  the  remainder  should  vest  at 
the  very  instant  of  the  determination  of  the  particular  estate  at  farthest,  was 
extended  to  the  case  of  a  posthumous  son.  In  the  case  of  Reeve  v.  Long,  1 
Salk.  227.  an  estate  was  limited  to  A.  for  life,  remainder  to  his  eldest  son  in  tail; 
A.  died,  leaving  his  wife  enseint.  She  afterwards  had  a  son.  It  was  adjudged 
that  the  son,  not  being  in  esse  at  the  time  of  the  determination  of  the  particu- 
lar estate,  could  not  take  under  the  limitation.  This  judgment  was  afterwards 
affirmed  in  the  court  of  king's  bench;  but  it  was  reversed  in  the  house  of  lords, 
against  the  opinion  of  all  the  judges.  To  obviate  all  doubts  respecting  the  law 
in  this  case,  the  statute  of  10  Will.  III.  c.  16.  was  passed,  by  which  it  was 
enacted,  that  where  any  estate  is,  by  marriage,  or  any  other  settlement,  settled 
in  remainder  to  children,  with"  remainders  over,  any  posthumous  child  may  take 
in  the  same  manner  as  if  born  in  the  father's  life-time.  It  is  singular  that  this 
statute  docs  not  expressly  mention  limitations  or  devises  made  by  wills.  There 
is  a  tradition,  that,  as  the  case  of  Reeve  v.  Long  arose  upon  a  will,  the  lords 
considered  the  law  to  be  settled  by  their  determination  in  that  case  ;  and  were 
unwilling  to  make  any  express  mention  of  limitations  or  devises  made  in  wills, 
lest  it  should  appear  to  call  in  question  the  authority  or  propriety  of  their 
determination.  Besides,  in  the  above  case  of  Reeve  v.  Long,  the  words  of 
the  act  may  be  construed,  without  much  violence,  to  comprise  settlements  of 
estates  made  by  will,  as  well  as  si  ttleraents  of  estates  made  by  deed. — [Note 
259.] 


298.  b.]  Of  Confirmation.       L.  3.  C.  8.  Sect.  523. 

(conjirme  tlie  state  of  one)  without  more  saying  in  the 

J5^"  deede,  viz.  to  have  and  to  hold  the  lauds,  etc.  Se-  rQ98.1 

condlj,  the  reason  of  Littleton  in  expresse  words  is,  for  L     l^-     J 

that  nothing  was  confirmed  but  his  estate  which  was 

joynt.     Thirdly,  the  next  two  Sections  make  it  plaine  where 

the  hahendum  is  added. 

Hereby  also  it  appeareth,  that  a  release  is  more  forcible  in  law 
than  a  confirmation.  If  the  disseisee  and  a  stranger  disseise  the 
heire  of  the  disseisor,  and  the  disseisee  confirme  the  estate  of  his 
companion,  this  shall  not  extinguish  his  right  that  was  sus- 
pended :  so  as  if  the  heire  (B)  or  the  disseisor  re-enter,  the  right 
of  the  disseisee  is  revived.  And  so  it  is  if  the  grantee  of  a  rent- 
charge  and  an  estranger  disseise  the  tenant  of  the  land,  and  the 
grantee  confirme  the  estate  of  his  companion,  the  tenant  of  the 
land  re-enter,  the  rent  is  revived ;  for  the  confirmation  extended 
not  to  the  rent  suspended,  otherwise  it  is  of  a  release  in  both 
cases. 


Sect.  523. 

A  ND  for  this  some  have  said,  that  if  two  joyntenants  bee,  and  the  one 
confirme  the  estate  of  the  other,  that  he  hath  but  a  joynt  estate,  aa 
he  had  before.  But  if  hee  hath  such  words  in  the  deede  of  confirma- 
tion, to  have  and  to  hold  to  him  and  to  his  heires  all  the  tenements 
ivhereof  mention  is  made  in  the  confirmation,  then  he  hath  a  sole  estate 
in  the  tenements,  *  ^c.  And  therefore  it  is  a  good  and  sure  thing  in 
every  confirmation  to  have  these  words ;  to  have  and  to  hold  the  tene- 
ments, ^e.  in  fee,  or  in  fee  taile,  or  for  terme  of  life,  or  for  terme  of 
yeares,  according  as  the  case  is  or  the  matter  lyeth  (solonque  ceo  que  le 
cas  t  est,  ou  le  matter  gist.) 

AND  this  confirmation  leaveth  the  state  as  it  was,  and  doth 
not  amount  to  any  severance  of  the  joynture,  as  some  have 
said. 

34  E.  3.  tit  "But  if  hee  hath  such  words  in  the  deede,  &€."     This  is 

Confirm,  pi.  15.    plaine  and  evident  enough. 

"And  therefore  it  is  a  good  and  sure  thing,  &c."    This  is  good 
counsell,  and  worthy  to  be  observed. 

Sect. 

*  &c.  not  in  L.  and  M.  or  Roh.  f  est  not  in  L.  and  M.  or  Roh. 


(B)  Here,  it  seems,  the  text  should  be  read  as  if  lord  Coke  had  said,  "so  as  if  the  heir  of 
the  disseisor  re-enter,  instead  of,  "so  as  if  the  heir  or  the  disseisor  re-enter,"  See  ace. 
the  7th  <&  12th  editions. 


L.  3.  C.  9.  Sect.  524-5.  Of  Confirmation.  [298.  b.  299.  a. 


Sect.  524. 

JfOR  to  the  intent  of  some,  if  a  man  letteth  land  to  another  for  life, 
and  after  confirme  his  estate  ivhich  hee  hath  in  the  same  land,  to 
have  and  to  hold  his  estate  to  him  and  to  his  heires,  this  confirmation  as 
to  his  heires  is  voide,for  his  heires  cannot  have  his  estate,  which  was  not 
hut  for  terme  of  his  life  (car  ses  heires  ne  poient  aver  son  estate  que  * 
ne  fuit  forsque  pur  terme  de  son  vie).  Bnt  if  he  confirme  his  estate  by 
these  words,  to  have  the  same  land  to  him  and  to  his  heires,  this  confirma- 
tion maketh  a  fee  simple  in  this  case  to  him  in  the  land,  for  that  the 
tvords  to  have  and  to  hold,  ^c.  goeth  to  the  land,  and  not  to  the  estate 
which  hee  hath  (pur  ceo  que  f  les  parolx  a  aver  et  tener,  &c.  va  a  le  terre, 
et  nemy  al  estate  que  il  ad),  ^c. 

HERE  the  diversity  is  apparent  betweene  a  confirmation  of  the 
estate  for  life  in  the  land  to  have  and  to  hold  the  said  state 


in  the  land  to  him  and  his  heires,  this  cannot  B®"  (1  Roll.  Abr. 
99.1  enlarge  his  estate,  for  his  estate  beingbut  for  life,  that  "^^'^  „    , 
a.     J  estate  cannot  bee  extended  to  his  heires.    But  in  that  (pio.  i58,  a.) 

case  if  he  confirme  the  state  for  life  in  the  land  in 


['?'•] 


the  premisses  of  the  deed,  and  the  habendum  is  in  this  sort,  to 
have  and  to  hold  the  land  to  him  and  his  heires,  this  shall  en- 
large his  estate,  and  create  in  him  a  fee  simple. 

Wherein  is  to  bee  noted,  [e\  that  the  habendum  and  the  pre-  [e]  Vid.  PI.  Com. 
misses  doe  in   substance  well  agree  together,  and   that  the  ha-  ii  Throgmor- 
bendum  shall  enlarge  the  premisses,  but  not  abridge  the  same  (1).  f^f  ur^a 

And  seeing  that  in  conveyances,  limitations  of  remainders  Wrottesieye's 
are  usuall  and  common  assurances,  it  is  dangerous  by  conceipts  c^^'?'  19''- 
or  nice  distinctions  to  bring  them  in  question,  as  have  in  latter  ^^  ^^P"  ^^"^ 
time  beene  attempted. 

<'  His  estate:'     Vide  Sect.  650. 


Sect  525. 

ALSO,  if  I  let  certaine  land  to  a  feme  sole  for  terme  of  her  life,  who 
taketh  husband,  and  after  I  confirme  the  estate  of  the  husband  and 
ivife,  to  have  and  to  holdXfor  terme  of  their  two  lives  ;  in  this  case  the 
husband  doth  not  hold  jointly  ivith  his  wife,  but  holdeth  in  right  of  his 
wife  for  terme  of  her  life.  But  this  confimation  shall  enure  to  the  husband 
by  ivay  of  remainder  for  terme  of  his  life,  if  he  surviveth  his  wife- 

HERE 

*  ne  not  in  L.  and  M.  or  Roh.  |  tlie  land  added  in  L.  and  M. 

I  les  parolx — le,  L.  and  M.  and  Roh.     and  Roh. 


(1)  On  the  operation  of  an  habendum  in  a  deed,  see  ant.  21.  a.     Vin.  Abr. 
Grant,  J.  K.  L.  and  M. 

Vol.  II.— 31 


299.  a.  299.  b.]     Of  Confirmation.    L.  3.  C.  9.  Sect.  525. 


Vide  Sect.  57:!.  TTERE  is  the  fourth  case  wherein  the  release  and  confirmation 
[2  R  ?f  Ai** ^^  "^  '^^'^  agree;  and  in  this  case  it  is  to  be  observed,  that  the 
829.)  '  "  baron  hath  such  an  estate  in  the  land  in  the  right  of  his  wife  as 
hee  is  capable  of  a  confirmation  to  enlarge  his  estate  ;  and  there- 
fore if  the  confirmation  had  been  made  of  his  estate  to  him  alone, 
(Ant.  273.  b.)  to  have  and  to  hold  the  land  to  him  and  to  his  heires,  this  had 
^J^'  ^'  45'  been  good  to  have  conveyed  the  fee  simple  to  him  after  the  de- 
22  E.  3.'  tit!  cease  of  his  wife  :  for  if  in  this  case  a  release  be  made  to  the 
Release.  husband  and  his  heirs,  this  is  sufficient  to  convey  the  inheritance 

Statham.  ^f  jj^g  i^^^  j.^  ^^^  husband  (2). 

"  DotJi  not  lioldjoyntly  with  Ms  wife.  For  two  causes. 
(4  Rep. 29.)         First,  because  O^the  wife  hath  the  wholefor  her  life.   rQ99.1 
Secondlyj'oyntenants  must  (as  hath  beene  before  said   L      b-     J 
in  the  chapter  of  Joyntenants)  come  in  by  one  title. 
But  in  this  case  if  the  confirmation  had  been  made  to  the  husband 
18  E.  3.  20.         ^'^'^  wife,  to  have  and  to  hold  the  land  to  them  two  and  to  their 
(1  Roll.  Rep.       heires,  they  had  been  joyntenants  of  the  fee  simple,  and  the  hus- 
230.  317.  438.      band  seised  in  the  right  of  his  wife  for  her  life  ;  for  the  husband 
Ant'^°l84  a.         ^"^^  ^^^  '^^^^  cannot  take  by  moities  during  the  coverture. 
187.  a.  If  a  man  letteth  land  to  the  husband  and  wife,  to  have  and  to 

Post.  351.  a.  hold  tlie  one  moity  to  the  husband  for  terme  of  his  life,  and  the 
other  moiety  to  the  wife  for  her  life,  and  the  lessor  confirme  the 
estate  of  them  both  in  the  land,  to  have  and  to  hold  to  them  and 
to  their  heires ;  by  this  confirmation  as  to  the  moity  of  the  hus- 
band, it  enureth  only  to  the  husband  and  his  heires,  for  the  wife 
18  Ass.  p.  3.  had  nothing  in  that  moiety  :  but  as  to  the  moity  of  the  wife, 
18  E.  3.  they  are  joyntenants,  as  hath  bin  said;  for  the  husband  hath  such 

n  £""'3^68  ^^  estate  in  his  wife's  moiety,  in  her  right,  as  is   capable  of  a 

28  E.'  3."  94.'         confirmation.     But  if  such  a  lease  for  life  be  made  to  two  men 
40  E.  3.  by  severall  moities,  and  the  lessor  confirme  their  estates  in  the 

8  Ass.  20.  land,  to  bare  and  to  hold  to  them  and  to  their  heires,  they  are 

tenants  in  common  of  the  inheritance ;  for  regularly  the  con- 
firmation shall  enure  according  to  the  quality  and  nature  of  the 
estate  which  it  doth  enlarge  and  increase. 

If  a  lease  for  life  be  made  to  A.  the  remainder  to  B.  for  life, 

and  the  lessor  confirme  their  estates  in  the  land,  to  have  and  to 

hold  to  them  and  their  heires,  A.  taketh  one  moity  to  him  and 

his  heires,  and  therefore  of  the  one  moity  he  is  seised  for  life, 

the  remainder  to  B.  for  life,  and  then  to  him  and  his  heires :  of 

the  other  moiety  A.  is  seised  for  life,  the  immediate  inheritance 

^  to  B.  and  his  heires  :  because  as  to  the  moity  which  B.  takes, 

39  H.  6.  9.  the  same  is  executed  :  as  if  the  reversion  be  granted  to  tenant 

Ant.  182.  b.)        for  life,  and  to  a  stranger,  it  is  executed  for  one  moity,  (as  hath 

been 

(2)  The  nature  of  the  estate  which  the  husband  acquires  by  marriage  in  his 
wife's  real  property,  will  be  explained  in  a  note  to  fol.  325.  b.  With  respect  to 
his  interest  in  her  chattels  real  and  choses  in  action,  an  accurate,  and,  so  far 
iis  it  goes,  a  masterly  explanation  of  it  is  given  in  Bacon's  Abridgment,  Baron 
and  Feme,  (B).  It  is  much  to  be  lamented,  that  the  author  did  not  go  more 
fully  into  the  subject.  Mr.  Viner  has  collected  most  of  the  cases  respecting 
it  with  his  usual  industry. — But  since  the  publication  of  that  useful  compila- 
tion, several  cases  have  been  determined,  by  which  the  law  upon  it  has  been 
greatly  illustrated  and  explained,  and,  in  some  instances,  altered.  An  attempt 
will  bs  made  to  give  a  succient  view  of  it,  in  a  note  to  fol.  351. — [Xote  2G0.] 


L.  3.  C.  9.  Sect.  525.     Of  Confirmation.  [299.  b. 

been  said  before)  and  therefore  in  this  case  they  are  tenants  in 
common. 

If  lands  be  given  to  two  men,  and  to  the  heires  of  their  two 
bodies  begotten,  and  the  donor  confirmeth  their  two  estates  in 
the  land,  to  have  and  to  hold  the  land  to  them  two  and  to  their 
heires;  in  this  case  some  are  of  opinion  that  they  shall  be  joyn- 
tenants  of  the  fee  simple,  because  the  donees  were  joyntenants 
for  life,  and  (say  they)  the  conflrmation  must  enure  according 
to  the  estate  which  they  have  in  possession,  and  that  was  joynt. 
But  others  hold  the  contrary.  For,  first,  they  say,  that  the 
donees  have  to  some  purposes  severall  inheritances  executed, 
though  between  the  donees  survivor  shall  hold  for  their  lives. 
Secondly,  they  say,  that  when  the  whole  estate,  which  compre- 
hendeth  severall  inheritances,  is  confirmed,  the  confirmation 
must  enure  according  to  the  severall  inheritances,  which  is  the 
greater  and  most  perdurable  estate,  and  therefore  that  the  donees  Vid.  Sect.  573. 
shall  be  tenants  in  common  of  the  inheritance  in  this  case. 

"By  way  of  remainder,  &c."    Here  some  question  hath  been 
made  of  this  terme  remainder,  without  any  cause  at  all,  because 
in  law  it  is  in  nature  of  a  remainder.   For  in  case  of  a  fine,  when  pi.  Com.  Col- 
a  reversion  expectant  upon  an  estate  for  life  in  A.  is  granted  to  thirst's  case. 
B.  et  quo;  ad  ipsum  reverti  dehent  post  mortem  A.  pra^fato  B.  &  ^o*^^-  *  ^^"'*- 
hoiredihus  suis  remaneant,  &c.  and  a  more  colourable  exception 
iuight  be  taken  against  this  word  remaneant  there,  than  in  the 
case  of  Littleton. 

It  is  true,  that  in  *  16  iT!  6.  it  is  called  a  reversion :  in  [o]  [s]  ig  n.  6. 
9  E.  4.  it  is  called  a  remainder :  in  [p]  6  E.  3.  it  is  said,  that  tit.  Release,  45. 
by  the  confirmation  an  estate  accrued  to  the  husband  for  terme  W  ^  E.  4. 18. 
of  his  life.     In  Iq]  17  E.  3.  the  husband,  living  the  wife,  shall  [j]  n  e  3 
have  nothing  but  in  abeyance  after  the  death  of  his  wife.     But  68.  b. 
lest  there  should  bee  pugna  verborum,  which  learned  and  wise 
men  ever  avoide,  all  do  resolve,  that  the  estate  of  the  husband 
is  good,  and  that  it  doth  enure  by  way  of  increase  and  inlarge- 
ment  of  his  estate.     And  albeit  in  this  case  of  Littleton,  the  17  E.  3.  68.  b. 
husband  by  the  confirmation  gaineth  an  estate  for  life  in  remain-  "^'i-  Paget's  case, 
der,  (as  Littleton  termeth  it)  yet  if  the  husband  doth  waste,  an  jAnt'5t' ^ '^ 
action  of  waste  shall  lie  against  him  and  his  wife,  notwithstand- 
ing the  meane  remainder,  because  the  husband  himselfe  com- 
mitteth  the  waste,  and  doth  the  wrong;  and  therefore  shall  not 
excuse  himselfe  for  his  committing  of  waste,  in  respect  he  him- 
selfe hath  the  remainder;  no  more  than  if  a  man  lesseth  to  A. 
during  the  life  of  B.  the  remainder  to  him  during  the  life  of  C. 
if  he  commit  waste,  an  action  of  waste  shall  lie  against  him  (1). 

Sect.. 


(1)  It  is  necessary  to  distinguish  betwecD  the  cases  mentioned  by  Littleton 
and  Sir  Edward  Coke,  in  this  and  the  preceding  chapter,  where  an  estate  for' 
life  is  enlarged  to  an  estate  in  fee,  by  the  release,  or  confirmation  of  the  rever- 
sioner, or  remainder-man,  and  those  cases  where  a  person,  being  seised  of  aib 
estate  for  life,  the  inheritance  is  afterwards  conveyed  or  devised  to  his  right 
heirs,  by  a  subsequent  deed,  or  will.  It  appears  by  the  case  of  Moore  v.- 
Parker,  1  Lord  Raym.  37.  4  Mod.  310.  Skin.  5.58.  and  Fonnereau  v.  Fon- 
nereau,  Doug.  Eep.  1  vol.  470.  that  the  estate  of  the  ancestor  is  not  affected  by 

thV 


299.  b.J  Of  Confirmation.     L.  3.  C  9.  Sect.  526. 


Sect.  526. 

77  UT  if  I  let  land  to  a  feme  sole  for  terme  of  yeares^  who  taketh  hus- 
band, after  I  confirm  the  estate  of  the  husband  and  his  wife,  to 
have  and  to  hold  the  land  for  term  of  their  tivo  lives :  in  this  ease  they 
have  a  joynt  estate  in  the  freehold  of  the  land,  for  that  the  ivife  had  no 
freehold  before,  ^c. 

THIS 


the  subsequent  conveyance  or  devise  to  his  right  heirs.  For  though  it  is  a  rule 
that,  where  the  ancestor  by  any  gift  or  conveyance  takes  an  estate  of  freehold, 
and  in  the  same  gift,  or  conveyance,  an  estate  is  limited,  either  mediately  or 
immediately,  to  his  heirs  in  fee,  or  in  tail,  "  the  heirs,"  in  such  cases,  are  words 
of  limitation  of  the  estate,  and  not  words  of  purchase  ;  yet  this  applies  only  to 
those  cases  where  both  the  limitations  are  by  the  same  instrument.  In  some 
cases,  the  freehold  of  the  ancestor  has  resulted  to  him  by  implication  ;  but  still 
the  deed  from  which  that  implication  resulted  was  the  deed  in  which  the  limi- 
tation to  his  heirs  was  expressed ;  so  that  the  implied  estate  of  freehold,  and 
the  expressed  estate  of  inheritance,  arose  at  the  same  time,  and  under  the  same 
deed,  which  brings  it  within  the  general  rule.  But  suppose  an  estate  is  limited 
to  A.  for  life ;  remainder  to  such  uses  as  B.  shall  appoint,  and  afterwards  B.  in 
the  life-time  oi  A.  appoints  the  estate  to  ^4.'s  right  heirs;  it  is  difficult  to  say 
whether,  in  that  case,  the  estates  will  unite  or  not.  This  case  has  sometimes 
occurred  in  practice,  but  has  not  yet  been  the  subject  of  any  judicial  determi- 
nation. To  prove  the  union  of  the  two  estates,  it  may  be  contented,  that  the 
deed  by  which  the  power  is  executed,  must  be  considered  as  a  part  of  the  deed 
by  which  the  power  is  given ;  that  the  use  limited  by  the  execution  of  the 
power  derives  its  effect,  and  is  fed,  by  the  seisin  of  the  releasees  or  feoffees  of 
the  deed  containing  the  power;  that  the  uses  limited  in  the  original  deed,  to 
take  effect  in  default  of  an  execution  of  the  power,  are  subject  to  that  power; 
that  the  uses  limited  under,  or  by  virtue  of  the  power,  precede  and  take  place 
of  them,  in  the  same  manner  as  if  in  the  original  deed,  not  the  power,  but  the 
use  executed  by  virtue  of  the  power,  had  been  inserted ;  and  that  though  the 
uses  vest  at  different  times,  yet  they  may  be  considered  as  virtually  created  at 
the  same  time.  On  these  grounds,  the  proposed  case  may  be  contended  to 
resemble  the  case  put,  post.  378.  b.  that  if  lands  be  given  to  two,  during  their 
joint  lives,  with  the  immediate  remainder  to  the  right  heirs  of  him  who  shall 
die  first,  there,  both  the  estates  are  created  at  the  same  time,  but  the  inherit- 
ance does  not  vest  till  a  subsequent  period ;  yet  sir  Edward  Coke  expressly 
says,  that  the  heir,  in  that  case,  takes  by  descent.  Between  thf  cases,  however, 
there  is  this  difference,  and  it  may  be  thought  important,  that  in  the  case  put 
by  lord  Coke,  the  limitation  of  the  inheritance  was  confined  to  the  heirs  of  the 
predeceasing  tenant  for  life,  so  that  there  never  was  an  instant  when  it  was  not 
certain  that  the  remainder  in  fee  would,  in  the  contemplation  of  law,  attach  in 
one  or  other  of  them  so  far  as  to  make  his  heir  take  by  descent ;  and  thus  each 
tenant  for  life  had  a  contingent  remainder  or  possibility  in  fee.  But,  in  the  case 
proposed  in  this  annotation,  no  such  contingent  remainder  or  possibility  existed 
in  A.  the  tenant  for  life — See  ant.  271.  b.  note  1.  VII. Since  the  publica- 
tion of  this  note  in  the  former  editions  of  this  work,  the  subject  has  received  a 
masterly  investigation  by  Mr.  Fearne.  See  his  essay  on  Contingent  Remain- 
ders, 6th  edit,  page  74. — [Note  261.] 


L.  3.  C.  9.  Sect.  527.  Of  Confirmation.  [299.  b.  300.  a. 

M''HIS  is  the  fifth  case  wherein  the  release  and  confirmation  5  E.  3. 17.  b. 
*  doe  a^ree  :    and  it  is  to  be  observed,  that  chattels  Pi-  Com.  4is.  b. 

t300.~|   reals,  as  leases  foryeares,  B@°"  wardships,  and  the  like,  j^^  h  4. 12 
a.      J   are  not  given  to  the  husband  absolutely  (as  all  chattels  38  E.  3.  35. 

personals  are),  by  the  intermarriage,  but  conditionally  P'-  Com.  Dame 
if  the  husband  happen  to  survive  her,  and  he  hath  power  to  alien  ^'^Aga^'p^is 
them,  at  his  pleasure ;  but  in  the  mean  time  the  husband  is  pos-  4  II.  6.  5! 

sessed  of  the  chattels  reall  in  her  riixht.  7  H.  6. 1. 

*=  9  H.  6.  52. 

37  Li.  Ass.     21II.  7.  29.     21  E.  4.  40.     26  II.  S.  7.     (Ant.  46.  b.     Post.  351.  a.) 

Secondly,  that  the  husband  hath  such  a  possession  in  her  right  (Ant.  273.  b. 
of  the  chattell,  as  is  capable  of  a  confirmation  or  of  a  release.  -*^"*-  ^"6.  a. 

Thirdly,  that  the  confirmation  in  this  case  to  the  husband  and  °  '  '  ^'' 
wife  for  their  lives,  maketh  them  joyntenants  for  life,  because 
a  chattell  of  a  feme  covert  may  be  drowned ;  and  so  note  a  diver- 
sity betweene  a  lease  for  life  and  a  lease  foryeares  made  to  a  feme 
covert ;  for  her  estate  of  freehold  cannot  be  altered  by  the  con- 
firmation made  to  her  husband  and  her,  as  the  terme  for  yeares 
may,  whereof  her  husband  may  make  disposition  at  his  plea- 
sure (1). 

Sect.  527. 

^LSO,  if  my  disseisor  granteth  to  one  a  rent  charge  out  of  the  land 
ivhereof  he  disseised  mee,  and  I  rehearsing  the  sayde  grant  conjirme 
the  same  grant,  and  all  that  which  is  comjyrised  within  the  same  grant, 
and  after  I  enter  upon  the  disseisor  ;  quaere,  in  this  case,  if  the  land  be 
discharged  of  the  rent  or  no* 

HIS  is  the  fifth  case  wherein  the  release  and  confirmation  doe 

differ ;  for  a  release  to  the  grantee  in  this  case  [«]  were  voide.   [a]  11  H.  7.  28. 

It  is  holden  by  some  authority  since   Littleton  wrote,  that  the  l^'''- 1-  f^l-  147. 

disseisee   after   his   re-entry   shall   not  avoide  the  rent  charge  ^i"!®  Mayor's 
...  „  .-'  ,,  111.,*     case.  3  H.  4.  10. 

agamst  his  own  confirmation  ;  and  there  a  generall  rule  is  taken, 

that  such  a  thing  as  I  may  defeate  by   my  entry,  I  may  make 

good  by  my  confirmation. 

If  the  feoffee  upon  condition  grant  a  rent  charge  in  fee,  and  Li.  1.  fo.  147, 

the  feofi"or  confirmeth  it,  and  after  the  condition  is  broken,  and  i^^.    Anne 

the  feoffor  enter,  he  shall  not  avoide  the  rent  charge.     And  so  ^IP^K^  TT^,-.  x 
.^  ..„  ^,      ,.'„.,,.       .  ,  ,  °      ,     ,       ,.       (Post.  Sect.  529.) 

It  )s  it  the  heire  ot  the  disseisor  grant  a  rent  charge,  and  the  dis- 
seisee confirmeth  it,  and  after  recover  the  land,  he  shall  not 
avoide  the  rent ;  and  yet  in  neither  of  these  cases  his  entry  was 
congeable  at  the  time  of  the  confirmation  (2). 

Sect. 

*  &c.  added  in  L.  and  M.  and  Roh. 

(1)  If  a  man  seised  of  a  rent-charge  in  fee  grants  it  over  to  a  feme  sole  for 
a  term  of  years,  and  the  tenant  attorns,  and  she  marries  during  the  term,  and 
the  grantor  confirms  the  rent  to  the  husband  and  wife  for  their  lives,  or  in  fee, 
they  become  joint  tenants  for  life  or  in  fee  of  the  rent,  and  need  no  new  attorn- 
ment.    Vaugh.  46.— [Note  262.] 

(2)  Tenant  in  tail  makes  a  lease  for  life,  now  he  hath  gained  a  new  fee  by 
wrong,  and  afterwards  he  grants  a  rent-charge,  or  makes  a  lease  for  years,  and 
afterwards  tenant  for  life  dies,  he  shall  not  avoid  his  charge  or  lease,  althoueh 

he 


T 


300.  a.  300.  b.]     Of  Confirmation.     L.  3.  C.  9.  Sect.  528. 


Sect.  528. 

A  LSO,  if  a  parson  of  a  church  charge  the  glebe  land  of  his  church 
■^  hy  his  deed  (si  uu  parson  d'un  esglise  charge  *  le  glebe  de  son 
esglise  per  son  fait),  and  after  the  patron  and  ordinary  confirme  the 
same  grant,  f  ^^^  <^^^  t^^^^  ^'^  comprised  in  the  same  grant,  then  the  grant 
shall  stand  in  his  force,  according  to  the  purport  of  the  same  graunt. 
But  in  this  case  it  hehoveth  that  the  patron  hath  a  fee  simple  in  the  ad- 
vowson  ;  for  if  he  hath  hut  an  estate  for  life,  or  in  taile,  in  the  advowson, 
then  the  graunt  shall  7iot  stand,  hut  during  his  life,  and  the  life  of  the 
parson  which  granted  (Car  s'il  \.  n'ad  estate  en  I'avowson  forsque  pur 
terme  devie,  ou  en  le  taile,  donquele  grant  |ne  estoyera  forsque  durant 
sa  vie,  et  la  vie  le  person  que  grantast),  &c. 


Glanv.  li.  13.        "  pARSOJV,"  Persona.     In  the  legall  signification  it  is  taken 
..•a.  23,  24.  25.  for  the  rector  of  a  church  parochiall,  and  is  called  persona 

■^"""gg-'''/"  ecdesias,  because  he  assumeth  and  taketh  iipon  him  the 

lir'it.  fo.  234.  b.    parson  of  the  church,  and  is  0^  said  to  be  seised  in  fSOO/l 
Ac.  Fleta.  li.  5.  Jure  ecclesix,Sind  the  law  had  an  excellent  end  therein,   |_     b.       \ 
rv.  ^fi^'  ^^'  i*s        ^'^^-  ^^^^  ^^  ^^^  person  the  church  might  sue  for  and  de- 
Reg.  F.  N.  B.      feud  her  right;  and  also  be  sued  by  any  that  had  an  elder  and 
4S.  49.  better  right;  and  when  the  church  is  full,  it  is  said  to  be  ^?enor  & 

]!rit.ubi  supra,    consulta  of  such  a  one  parson  thereof,  that  is,  full  and  provided 

of  a  parson,  that  may  vicem  seu  personam  ejus  yerere. 
''^  E.  3. 26.  43.  Persona   imjyersonata, -parson  impersonee,  is   the  rector,  that 

;;8  E.  3. 4.  is  in  possession  of  the  church  parochiall,  be  it  presentative,  or 

•>  Mar.  Dy.  123.    impi-opriate,  of  whom  the  church  is  full. 

Here  are  divers  things  to  bee  noted.     First,  that  the  confirma- 
tion is  of  the  grant,  which  indeed  is  but  a  meere  assent  by 
7  H.  4.  15.  deed  to  the  grant ;  and  therefore  it  is  holden,  that  if  there  be  a 

(Mo.  67.)  parson,  patron,  and  ordinary,  and  the  patron  and  ordinary  give 

licence  by  deed  to  the  parson  to  grant  a  rent  charge  out  of  the 
glebe,  and  the  parson  granteth  the  rent  charge  accordingly,  this 
is  good,  and  shall  binde  the  successor;  and  yet  here  is  no  con- 
firmation subsequent,  but  a  licence  precedent. 

Secondly,  the  ordinary  alone,  without  the  deane  and  chapter, 
may  agree  thereunto,  either  by  licence  precedent,  or  confirma- 
tion subsequent ;  for  that  the  deane  and  chapter  hath  nothing  to 
,,  „  „    ,,  doe  with  that  which  the  bishop  doth  as  ordinary,  in  the  life-time 

( I  Roll.  Abr.  .    1      1  •  1 

479. 4S1.)  ot  the  bishop. 

[/,]  10  El.  Thirdly,  [/>]  but  if  the  bishop  be  patron,  there  the  bishop  can- 

fj'u^c'^'^'^'  "^*'  confirme  alope,  but  the  deane  and  chapter  must  confirme 

33  H.  8.  tit.  also;  for  the  advowson  or  patronage  is  parcell  of  the  possession 

Charge.  Br.  58.  of  the  bishoprickc ;  and  therefore  the  bishop,  without  the  deane 

(Post.  329.  a.)  and 

*  le — un,  L.  and  M.  and  RoJi.             \.  n'ad — ads,  L.  and  M.  and  Roh. 
-j-  and  all  that  is  comprised,  in  the         |  ne  not  in  L.  and  M.  or  Roh 
same  grant,  not  in  L.  and  M.  or  Roh, 


he  be  in  of  another  estate,  because  he  had  a  defeasible  pqpsession  and  ancient 
right,  the  which,  if  they  be  in  several  hands,  should  be  good,  as  the  lease  of 
one,  and  the  confirmation  of  the  other;  and  being  in  one  hand,  shall  be  as 
much  in  judgment  of  law.     7  Rep.  14.  a.  in  Englefield's  case. — [Note  263.] 


L.  3.  C.  9.  Sect.  528.    Of  Confirmation.  fSOO.  b.  301.  a. 

and  chapter,  cannot  make  the  grant  good,  but  only  during  his 
owne  life,  after  the  decease  of  the  incumbent,  either  by  licence 
precedent,  or  confirmation  subsequent. 

A.  parson  of  D.  is  patron  of  the  church  of  S.  as  belonging 
to  his  church,  and  presents  B.  who  by  consent  of  A.  and  of  the  See  more  of 
ordinary,  grants  a  rent  chai-ge  out  of  the  glebe ;  this  is  not  good  these  kinds  of 
to  make  the  rent  charge  perpetuall,  without  the   assent  of  the  in"niy°ReporL''. 
patron  of  A.  no  more  than  the  assent  of  the  bishop  who  is  (Li.  2.  24  &  S'J. 
patron,  without  the  deane  and  chapter,  or  no  more  than  the  ^■  1-  l^.s. 
assent  of  the  patron,  being  tenant  in  taile  or  for  life,  as  Littleton  £l,^'  -^' ^^^-^-^  gj 
saith.     And  Littleton  here  saith,  that  the  patron  that  confirmes  Lib.  lo.  6. 
must  have  a  fee  simple,  meaning  to  make  the  charge  perpetuall  Lib.  li.  19. 
(1).     And  LittleftjH  after  saith,  that  in  the  case  of  the  parson  P!^".^o-f'u 

\'„..,  1-1  r     1  •      (-Ant.  2/4.  b. 

the  tee  is  in  abeyance,  and  seeing  the  consent  oi  tlie  patron  is  297.  a.  Sid.  75.) 
in  respect  of  his  interest  (B)  as  heire,  it  appeareth  by  Littleton, 
he  may  consent  upon  condition ;  otherwise  it  is  of  an  attorne- 
meut,  because  that  is  a  bare  assent.  Also  if  the  estate  of  the 
patron  be  conditionall,  and  he  confirmeth,  and  after  the  condi- 
tion is  broken,  his  confirmation  is  voide. 

Fourthly,  he  that  is  patron  must  be  patron  in  fee  simple;  for  31  E.  8.  Grant, 
if  hee  be  tenant  in  taile,  or  tenant  for  life,  his  confirmation  or  Q^pr^''T)^^**5^2" 
agreement  is  not  good  to  bind  any  successor,  but  such  as  come  vid.  lib.  3.  fol.' 
into  the  church  during  his  life.  But  if  the  patron  be  tenant  in  73.  Le  case  de 
taile,  and  discontinue  the  estate  in  taile,  the  lease  shall  stand  Jeane  <t  chapter 
good  during  the  discontinuance;  or  if  the  estate  taile  be  barred,  ^^  l^,^,  ^^2! 
it  shall  stand  good  for  ever.  1  Roll.  Ah.  482. 

But  here  is  to  be  observed  a  diversity  betweene  a  sole  corpo-  ^^^"^^-  ^'^*■• 
ration,  as  parson,  prebend,  vicar,  and  the  like,  that  have  not  the  '^2  jj  4  u. 
absolute  fee  in  them,  for  to  their  grants  the  patron  must  give  19  E.  3.  7. 
his  consent.     But  if  there  be  a  corporation  aggregate  of  many,  ''  EHz.  Dy.  23S. 
as  dean  and  chapter,  master,  fellowes,  and  schollars  of  a  colledge,  jq  eUz  i)v 
abbot  or  prior,  and  covent,  and  the  like,  or  any  sole  corporation  g  E.  3. 10. 
that  hath  the  absolute  fee,  as  a  bishop  with  consent  of  the  dean  2  E.  3.  29. 
and  chapter,  they  may  by  the  common  law  make  any  grant  of  X  fj"  4  {i 
or  out  of  their  possessions,  without  their  founder  or  patron,  33  E.  3.  19. 
albeit  the  abbot  or  prior,  &,c.  were  presentable  :  and  so  it  is  of  a  25  E.  3.  54. 
bishop,  because  the  whole  estate  and  right  of  the  land  was  in 
them,  and  they  may  respectively  maintaine  a  writ  of 

rsoi.]  right. 

|_     a.     J       B®""  If  a  bishop  hath  two  chapters,  and  he  maketh  Temps,  R.  2. 

a  grant,  both  chapters  must  coufirme  it,  or  else  the  tit.  (Jrnnt,  104. 
successor  shall  avoide  it.     But  if  one  of  the  chapters  be  dis-  A^^^^^V^gt't'i, 
solved,  then   the  confirmation   of  the  other  sufficeth;    but  it  n  eUz. 
needeth  not  the  confirmation  of  the  king,  who  is  founder  and  Dyer,  282. 
patron  of  all  bishopricks  (P). 

And 

(B)  Ifere  the  sense  of  the  text  seems  to  require  a  comma,  rather  than  after  "heire,"  which 
word  afipears  to  he  printed  hi/  inistake  instead  of  "  here  ',"  for,  the  consent  of  the  patron  was 
in  respect  of  his  interest  simply,  and  it  teas  immaterial  whether  he  had  acquired  such  interest 
by  descent  or  purchase. 

(1)  A  prebendary  after  admission  and  institution,  and  before  induction,  or 
instalment,  granted  an  annuity  for  him  and  his  successors,  and  the  bishop 
confirmed  it;  it  was  resolved,  that  a  writ  of  annuity  lay  not  in  that  ease, 
because  the  confirmation  being  made  before  the  induction,  was  void.  Plow.  528. 
a._[Note  264.] 

(1*)  For  the  confirmation  of  leases  made  by  ecclesiastical  persons,  see 
Bacon's  Abr.  tit.  Leases. 


301.  a.]  Of  Confirmation.    L.  3.  C.  9.  Sect.  529. 

And  note  a  diversity  between  a  confirmation  of  an  estate,  and 
a  confirmation  of  a  deed;  for  if  the  disseisor  make  a  charter  of 
feoffment  to  A.  with  a  letter  of  attorney,  and  before  livery  the 
disseisee  confirme  the  estate  of  A.  or  the  deed  made  to  A.  this 
is  cleerly  voide,  though  livery  be  made  after.  But  if  a  bishop 
had  made  a  charter  of  feoifment  with  a  letter  of  attorney,  and 
the  deane  and  chapter  before  livery  confirme  the  deed,  this  is  a 
good  confirmation,  and  livery  made  afterwards  is  good.  And  so 
it  hath  been  adjudged. 

The  like  law  is  of  a  confirmation  of  a  deed  of  grant  of  a  re- 
version before  attornment. 

In  the  same  manner  it  is  if  a  bishop  at  the  common  law  had 
granted  lands  to  the  king  in  fee  by  deed,  and  the  deane  and 
chapter  by  their  deed  confirme  the  deed  of  the  bishop,  and  after 
the  deed  of  the  bishop  is  inrolled,  this  is  good,  albeit  the  con- 
firmation of  the  deene  and  chapter  he  not  inrolled ;  for  the 
assent  upon  the  matter  is  made  to  the  bishop. 
33  E.  3.  But  this  confirmation  that  Littleton  here  speaketh  of  must  be 

Confirm.  22.  niade  in  the  life,  and  during  the  incumbency  of  the  person  ; 
21  H  7  1  '^^^  ^^  '°  ^^^  ^'^^^  ^^  ^^^  bishop,  or  of  any  other  sole  corpora- 

VVl.  Sect.  393,  tion.  But  it  is  to  be  knowne  that  grants  made  by  parsons,  pre- 
<t  643.  bends,   vicars,   bishops,   master  and   fellowes  of  any  colledge, 

deane  and  chapter,  master  or  gardeine  of  any  hospital),  or  any 
having  any  spirituall  or  ecclesiasticall  living,  are  restrained  by 
[«]  13  Eliz.  j-f]  divers  acts  of  parliament,  so  as  they  cannot  grant  any  rent 

l^Eliz  cap  19  charge,  or  to  make  any  alienation,  or  to  make  any  leases  other 
18  Eliz.  ca.  11.  than  such  as  are  mentioned  in  those  acts,  which  you  may  reade 
1  Jac.  cap.  3.  at  large,  and  the  expositions  upon  the  same,  in  my  [*]  Com- 
Vid.  Sect.  593.      ^^ntaries. 

[«]  Li.  2.  fo.  46.    lib.  4.  76  &  120.     li.  5.  9.  6.  14.     li.  6.  37.     lib.  7,  8.     lib.  11.  67. 

Sect.  529. 

A  LSO,  if  a  man  letteth  land  for  term  of  life,  the  which  tenant  for 
life  charge  the  land  with  a  rent  in  fee,  and  he  in  the  reversion  con- 
firme the  same  grant,  the  charge  is  good  enough  and  effectuall. 

26  Ass.  pi.  38.  Tl  ERE  is  a  diversity  to  bee  observed,  whore  the  deterniina- 
45Ass.pl.  13.  1  1  tion  of  the  rent  is  expressed  in  the  deed,  and  when  it  is 
Aniie  Mayowe's  J^P^J^d  in  law.  For  when  tenant  for  life  granteth  a  rent  in 
case.  fee,  this  by  law  is  determined  by  his  death;  and  yet  a  confirma- 

(1  Roll.  Abr.  tion  of  the  grant  by  him  in  the  reversion  makes  that  grant  good 
14  A^s  d1  14  ^"^  ever,  without  words  of  inlargement,  or  clause  of  distresse, 
which  would  amount  to  a  new  grant.  And  yet  if  the  tenant  for 
life  had  granted  a  rent  to  another  and  his  heires  by  expresse 
words,  during  the  life  of  the  grantor,  and  the  lessor  had  con- 
firmed that  grant,  that  grant  should  determine  by  the  death  of 
tenant  for  life. 

Tenant  for  life  upon  a  condition  grant  a  rent  in  fee,  the  lessor 
confirme  the  grant,  and  after  the  condition  is  broken,  the  lessor 
re-enter,  he  shall  not  avoide  the  grant. 

Sect. 


f 


L.  3.  C.  9,  S.  530, 531.  Of  Coiifiimation.     [301.  a.  301.  b. 


Sect.  530. 

^LSO  if  tliere  bee  a  perpetuall  ehanterie,  wherewith   the  ordinary 
hath  nothing  to  doe  or  meddle;  qu?ere,  if  the  patron  of  the  chantery^ 
and  the  chapleine  of  the  same  chantery  may  charge  the  ehantery  with  a 
rent  charge  in  perpetuitie. 

H'HIS  is  meant  of  a  chauntery  donative  wherewith  the  ordi-  Vid.  Sect.  648. 
-L  nary  hath  not  to  deale,  and  by  this  grant,  when.  Littleton  ^o  R^'^Lam^ 
wrote,  the  chauntery  should  have  been   charged   for  ever,  be-  pet's 'case.) 

cause  no  other  had   any  interest  in    this   chantery  (Post.  344.) 
rSOl.  1   0^  save  only  the  patron  and  chauntry  priest,  and  the 
L      ^-      J   gT^SiutismiidacoiicurrentibushiisqnssinJin'e  requirun- 

tur.  But  since  Littleton  wrote,  all,  and  all  manner  of 
free  chappels  and  chaunteries  perpetuall,  whereof  Littleton  here 
speakes,  are  by  [a]  acts  of  parliament  given  to  the  crowne,  and 
the  bodies  politike  thereof  dissolved.  See  hereafter.  Section  648,  ^"^f^  ^'  ^' 
more  at  large  of  this  present  Section.  IE.  6,  c.  14. 


Sect.  531. 

j^LSO,  in  some  case  this  verhe  dedi,*  or  this  verhe  concessi,  hath  the 
same  effect  in  substance,  and  shall  enure  to  the  same  intent,  as  this 
verbe  confirmavi.  As  if  I  bee  disseised  of  a  came  of  land,  and  I  make 
such  a  deed  (sicome  jeo  sue  disseisie  d'un  carue  de  terre,  et  f  jeo  face 
tiel  fait) ;  Sciant  proesentes,  &c.  quod  dedi  to  the  disseisor,  %  ^o.  or  quod 
concessi  to  the  said  disseisor,  the  said  carue,  ^c.  and  I  deliver  onely  the 
deed  to  him  without  any  liverie  of  seisin  of  the  land,  this  is  a  good  con- 
firmation, and  as  strojig  in  law,  as  if  there  had  beene  in  the  deede  this 
verbe  confirmavi,  &c. 

HERE  Littlfon  procedcth,  according  to  the  former  division,  to 
shew  words  that  in  law  do  amount  to  a  confirmation.    And 
here  is  to  be  observed,  that  some  words  are  large,  and  have  a 
gencrall  extent,  and  some  have  a  proper  and  particular  applica- 
tion.    The  former  sort  may  contain  the  latter;  &?,  dedi  ov  con-  -^^^  „  2.  fo.  59' 
ces.si  may  amount  to  a  grant,  a  feoffment,  a  gift,  a  lease,  a  release,  b.  21  li.'e. 
a  confirmation,  a  surrender,  &c.  and  it  is  in  the  election  of  the  Feoffments  & 
party  to  use  which  of  these  purposes  he  will.  22^11  ^fi  V 

14  II.  4.  36.  19  H.  6.  44.  7  II.  7.  16.  32  E.  3  Briefe,  291.  Brooke,  tit.  Contirui.  20. 
14  11.7.2.  37  H.  6.  17.  Dyer,  8  Eliz.  4  H.  7.  10.  22  E.  4.  36.  40  E.  3.  41. 
(Sid.  452.     Plo.  196.     5  Ptep.  17.  a.     1  Koll.  Abr.  482.     Noy,  66.) 

Est  autcmconfirmatio quasi quasdam  ratihahitio,  sufficit  tamen   Bmcton,  lib.  2. 
quandoque per  se,  si  etiam  in  se  contineat  donationcm,  ut  si  dicat        ^^* 

qnis 

*  or — and,  L.  and  M.  and  Roh.  |  &c.  or  quod  concessi  to  the  dis- 

f  puis  added  in  L.  and  M.  and  Roh.     seisor,  &c.  not  in  L.  and  M.  or  Roh. 


301.  b.  302.  a.]  Of  Confirmation.  L.  3.  C.  9.  Sect.  582. 

quis,  dedi  et  conjirmavi,  licet  juvari possit  ex  aliqua  donatione 
praeccdcnte. 

But  a  release,  conBrniation,  or  surrender,  &c.  cannot  amount 
to  a  grant,  &c.  nor  a  surrender  to  a  confirmation,  or  to  a  release, 
&c.  because  these  bee  proper  and  peculiar  manner  of  convey- 
ances, and  are  destined  to  a  speciall  end(l). 

"  Dedl  et  concessi,  &c."  Here  is  implyed  that  there  be  more 
words  than  dcdi  an^  concessi,  that  will  amount  to  a  confirmation, 
as  dimisi.  [e]  In  ancient  statutes  and  in  originall  writs,  as  in 
the  writ  of  entry  in  casu proviso,  inconsiynilicasu  ad  commniK  ni 
legem,  and  many  others,  this  word  dimisi  is  not  applied  only  to  a 
lease  for  life,  but  to  a  gift  in  taile,  and  to  a  state  in  fee.  [/]  Also 
if  a  man  make  a  lease  to  A.  for  yeares,  and  after  by  his  deed  the 
lessor  voluit  quod  haberet  et  tenerct  terram, pro  termino  vitee  svee ; 
this  is  adjudged  by  this  verbe  (volo)  to  bee  a  good  confirmation 
for  terme  of  his  life.  Beniyne  cnim  faciendss  sunt  interpreta- 
tiones  cartarum  propter  simplicitatem  laicorum  ut  res  mat/is 
valeat  qudm  pereat. 

And  he  to  whom  such  a  deed  comprehending  dedi,  <f-c.  is 
made,  may  pleade  it  as  a  grant,  as  a  release,  or  as  a  confirmation, 
at  his  election  (2). 

If  a  parson  and  ordinary  make  a  lease  for  yeares  of 
the  glebe  to  the  patron,  and  the  B®*  patron  by  his  fSO^.l 
deode  granteth  it  over,  or  if  the  disseisor  granteth  a  |_  a.  J 
rent  to  the  disseisee,  and  he  by  his  deed  granteth  it 
over,  and  after  re-enter;  in  both  these  cases  one  and  the  same 
words  doe  amount  both  to  a  grant,  and  to  a  confirmation  in 
judgement  of  law  of  one  and  the  same  thing,  ne  res  pereat.  And 
so  it  is  if  a  disseisor  make  a  lease  for  life,  or  a  gift  in  taile,  the 
remainder  to  the  disseisee  in  fee,  the  disseisee  by  his  deed  granteth 
over  the  remainder,  the  particular  tenant  attorneth,  the  disseisee 
shall  not  enter  upon  the  tenant  for  life,  or  in  taile,  for  then  he 
should  avoide  his  owue  grant,  which  amounted  to  a  grant  of  the 
estate,  and  a  confirmation  also. 


(4  Rep.  80.  b, 
2  Cro.  169. 
Mo.  34. 
Plo.  397,  39S.) 


[f]  32  E.  3. 
Briefe,  291. 
Brooke,  tit. 
Confirm.  20. 
Wd.  le  Stat,  de 
(iloe.  ca.  4, 
[/]  7  E.  3.  9. 
Brae  ton. 
(Plo.  159.) 


14  H.  4.  3G. 

Lib.  5.  fol.  15. 
in  Newcomen's 
cat^e. 


(Ant,  280.  298. 
b  Rep.  15,  16.) 


(Sid.  453.)  oGCt.     00_j. 

A  LSO,  if  I  let  land  to  a  man  for  terme  of  yeares,  ly  force  whereof  he 
is  in  possession,  <f<?.  (si  jeo  lessa  terre  a  un  home  pur  terine  d'ans, 
per  force  de  quel  il  est  *  en  possession),  and  after  I  make  a  deede  to 
him,  ^c.  quod,  dedi  &  concessi,  &;c.  the  said  land  to  have  for  terme  of  Iris 
life,  and  I  deliver  to  him  the  deed,  c^c.  then  presently  he  hath  an  estate 
in  the  land  for  terme  of  f  his  life. 

HERE 


*  en  possession,  &c, — possessione, 
L.  and  M.  and  Roh. 


f  his  not  in  L.  and  M.  or  Iloh. 


(l)The  eflFoct  of  the  word  grant,  in  implying  a  warranty,  will  be  considered 
in  a  note  on  the  chapter  of  Warranty. 

(2)  But  a  lease  and  release  cannot  be  pleaded  as  a  grant  of  the  reversion. 
Noy,  66.— [Note  265.] 


L.  3.  C.  9.  Sect.  533,  534.  Of  Confirmation.  [302.  a.  302.  b. 

HERE  is  the  sixth   case  wherein  the  confirmation  and  the 
release   doe   agree,  and  is  evident,  and  needeth   no    ex- 
plication. 


Sect.  533. 


A^P. 


if  I  say  in  the  deede,  to  have  and  to  hold  to  him,  and  to  his 
heires  of  his  body  engendrcd,  hee  hath  an  estate  in  fee  taile.  And  if 
1  say  in  the  deed,  to  have  and  to  hold  to  him  and  to  his  heires,  he  hath  an 
estate  in  fee  simple.  For  tins  shall  enure  to  him  by  force  of  the  confir- 
mation (per  force  de  *  confirmation)  to  inlarge  his  estate. 

n'HIS  also  is  evident,  and  needeth  no  explication,  saving  that 
-I  whensoever  a  confirmation  doth  inlarge  and  give  an  estate 
of  inheritance,  there  ought  to  be  apt  words  (as  Litth-lon  here 
expresseth  them)  used  for  the  same. 


Sect.  534. 

A  LSO  if  a  man  be  disseised,  and  the  disseisor  die  seised,  andhisheire 
is  in  by  discent,  and  after  the  disseisee  and  the  heire  of  the  disseisor 
make  joyntly  a  deede  to  another  in  fee  (et  puis  le  disseisee  et  I'heire  %  le 
disseisor  font  jointment  un  fait  aun  auter  en  fee),  and  livery  of  seisin  is 
made  upon  this,  {as  to  the  heire  of  the  disseisor  that  sealed  the  deed)  the 
tenements  doe  passe  \.  and  enure  by  the  same  deed  by  way  of  feoffment ; 
and  as  to  the  disseiseewho  sealed  the  same  deed,  this  shall  eyiure  but  by  way 
of  confirmation  (ceo  ne  urera  §  sinon  per  voy  de  confirmation).  But  if  the 
disseisee  in  this  case  brings  a  writ  of  entrie  in  the  per  and  cui  against  the 
alienee  of  the  heire  of  the  disseisor  (envers  I'alienee  ||  del  heire  le  disseisor) ; 
quBere,  how  he  shall  pleade  this  deede  against  the  demandant  by  way  of 
eonfirmation,  **  ^c.  And  know,  my  son,  that  it  is  one  of  the  most  honor- 
able, laudable,  and  profitable  things  in  our  law,  to  have  the  science  of 
well  pleading  in  actions  reals  and  personals  ;  and  therefore  I  counsaile 
thee  especially  to  imploy  f  tliy  courage  and  care  to  learne  this  ||. 

"  A  '^  ^^  ^^'^  be  ire.  of  the  disseisor,  &c.  the  tenement!^  doe 

[303. "I  passe  by  nay  of  feoffment."     For  05"  the  land 

b.     J   shall  ever  passe  from  him  that  hath  the  state  of  the  land  21  H.  7.  .34.  b. 
in  him.    As  if  cesfiti/  que  use  and  his  fcoflfces  after  the  PI-  •^••n'-  ^9-  •'^• 
statute  of  1  R.  3.  and  before  the  statute  of  27  JJ.  8.  cap.  10,  had  j,'^  J''"''''^''' 

joyned   (6  Rep.  15.  a.) 


*  confirmation — confirmament,   i,  §  sinon — mes,  L.  and  31.  and  Roh. 

and  M.  and  Roh.  \\  del — le,  L.  and  M.  and  Roh. 

\  le  disseisor,  not  In  L.  and  M.  or  **  (Sec.  not  in  L.  and  M.  or  Koh. 

Roh.  ■\  all  added  in  L.  and  M.  and  Roh. 

1  and  enure,  not  in  L.  and  M.  or  %%  ^^-   added  in  L.   and   M.    and 

Roh.  Roh. 


302.  b.  303.  a.]    Of  Confirmation.    L.  3.  C.  9.  Sect.  534. 

joyned  in  a  feoifment,  it  shall  be  the  feoffment  of  the  feoffees, 
because  the  state  of  the  land  was  in  (A)  him. 
PI.  Com.  59.  a.  So  it  is  if  the  tenant  for  life,  and  hee  in  the  remainder  or  re- 

Pl.  Cora.  140.  version  in  fee,  joyne  in  a  feoffment  by  deede.  The  livery  of  the 
case.'^"^^'^"^"  freehold  shall  move  from  the  lessee,  and  the  inheritance  from 
2  H.  5.  7.  him  in  the  reversion  or  remainder,  from  each  of  them  according 

13  H.  7.  14.  ^Q  ijjg  estate.  For  it  cannot  bee  adiudored  by  law,  that  the  feoff- 
27  H  8  13  '  luent  of  tenant  for  life  doth  draw  the  reversion  or  remainder 
M.  16  A  17  El.  out  of  the  lessor  or  him  in  remainder,  or  doth  worke  a  wrong 
339.  because  they  joyned  together  (1). 

(1  Roll.  Abr.  633.)     (Ant.  45.  a.)     (1  Rep.  76,  77.) 

Lib.  1.  fo.  76.  If  there  bee  tenant  for  life,  the  remaynder  in  tayle,  &c.  and 

Bredon's  case,     tenant  fjr  life  and  he  in  the  remainder  in  tayle  levie  a  fine,  this 
is  no  discontinuance  or  devesting  of  any  estate  in  remainder, 
but  each  of  them  passe  that  which  they  have  power  and  autho- 
rity to  passe. 
17Eliz.  -il-  tenant  for  life,  the  remainder  to  B.  for  life,  the  remainder 

Dyer,  339.  jn  tayle,  the  remainder  to  the  right  heires  of  B.,  A.  and  B.  joyne 

(1  Leo.  31.)  ju  ^  feoffment  by  deede,  albeit  it  may  be  said  that  this  is  the 
feoffment  of  ^4.  and  the  confirmation  of  B.  and  consequently  hee 
(1  Leo.  37.  262.)  in  the  remainder  in  tayle  cannot  enter  for  the  forfeiture  during 
the  life  of  B.  but  because  B.  joyned  in  the  feoffment,  which  was 
torcious  to  him  in  the  remainder  in  taile,  and  iaparticpj)s  criminis, 
therefore  they  forfeited  both  their  estates,  and  he  in  the  re- 
mainder in  tayle  might  enter  for  the  forfeiture.  But  if  he  in  the 
reversion  in  fee  and  tenant  for  life  joyne  in  a  feoffment  by  paroll, 
this  shall  be  (as  some  hold)  first  a  surrender  of  the  estate  of 
tenant  for  life,  and  then  the  feoffment  of  him  in  the  reversion : 
for,  otherwise,  if  the  whole  should  passe  from  the  lessee,  then 
he  in  the  reversion  might  enter  for  the  forfeiture,  and  every 
man's  act  [iit  res  mag  is  valeat)  shall  be  construed  most  strongly 
against  himselfe. 

And  it  is  to  be  observed  that  Littleton  here  putteth  a  discent, 
so  as  the  entry  of  the  disseisee  is  not  lawfuU  ;  for  if  the  disseisor 
and  disseisee  joyne  in  a  charter  of  feoffment,  and  enter  into  the 
land,  and  make  livery,  it  shall  be  accounted  the  feoffment  of  the 
disseisee,  and  the  confirmation  of  the  disseisor. 


1^^^' Qucere  how  he  shall  plead  this  deede,  &c."  Hee  fSOS.! 
lay  pleade  the  feoffment  of  the  heire  of  the  disseisor,  L     ^-      J 


Lib.  1.  fo.  146, 

147.  Mayowe's      m: 

*^'^^^-  and  the  confirmation  of  the  disseisee  as  it  hath   been 

pleaded  and  allowed.  . 

"  And 


(A)  Here  the  tcord  "him,"  seems  to  he  printed  by  mistake  instead  o/"  "  them."     See 
Mr.  Jiltso'a  lutr.p.  120. 

(1)  Tenant  for  life,  and  he  in  the  remainder  in  fee,  make  a  lease  for  years  by 
deed  indented;  the  lessee,  being  ejected,  declared  upon  the  demise  made  by 
the  tenant  for  life,  and  the  remainder-man;  and  adjudged  against  the  plaintiff; 
for,  living  the  tenant  for  life,  it  is  only  the  lease  of  the  tenant  for  life,  and  the 
confirmation  of  the  remainder-man ;  and  he  ought  to  have  so  declared,  1  Inst. 
45.  a.  So  if  two  joint-tenants,  two  tenants  in  common,  or  tenant  for  life  and 
he  in  the  remainder,  join  in  the  grant  of  a  copyhold,  one  fine  only  is  due,  and 
it  shall  enure  as  one  grant  only  :  so  if  a  remainder  be  made,  and  after  a  common 
recovery  is  had  by  plaint,  in  the  nature  of  a  writ  of  entry,  for  better  assurance 
—one  fine  only  shall  be  paid.     Co.  Copyholder,  162,  163.— [Note  266.] 


L.  3.  C.  9.  Sect.  534.      Of  Confirmation.  [303.  a. 

"  And  know,  my  son,  that  it  is  one  of  the  most  lionoiirahh,  &€."   ^^e  my  Preface 
Here  is  to  bee   observed  the  excellency  of  good  pleading,  and  ^^  |^^  Reporu 
Littleton^ s  grave  advice,  that  the  student  should  imploy  his  cou-  (Ant.  ir.  a. 
rage  and  care  for  the  attaining  thereof;  which  he  shall  attaine  126  b.  isi  a. 
unto  by  three  means:  first,  by  reading;  secondly,  by  observa-  l^j' "io  \ 
tion;  and  thirdly,  by  use  and  exercise.     For  in  ancient  time  the 
Serjeants  and  apprentices  of  lav/  did  draw  their  owne  pleadings, 
which  made  them  good  pleaders.     And  in  this  sense  jylacitum 
may  be  derived  d  plarhido,  quia  omnibus  placet. 

Now  seeing  good  pleading  is  so  honourable  and  excellent, 
and  that  many  a  good  cause  is  daily  lost  for  want  of  good  and 
orderly  pleading,  it  is  necessary  to  set  downe  some  few  rules 
(amongst  many)  of  the  same,  to  facilitate  this  learning,  that  is 
so  highly  commended  to  the  studious  reader.  For  when  I  dili- 
gently consider  the  course  of  our  bookes  of  years  and  termes 
from  the  beginning  of  the  raigne  of  Eiho.  8.  I  observe,  that 
more  jangling  and  questions  grow  upon  the  matter  of  pleading, 
and  exceptions  to  forme,  than  upon  the  matter  it  selfe,  and 
infinite  causes  lost  or  delayed  for  want  of  good  pleading.  There- 
fore it  is  a  necessary  part  of  a  good  common  lawyer  to  be  a  good 
prothonotary.     And  now  we  will  perform  our  promise. 

The  order  of  good  pleading  is  to  be  observed,  which  being 
inverted,  great  prejudice  may  grow  to  the  party,  tending  to  the 
subversion  of  law.    Online placitandi  servato,  servafnr  d^-jus,  d:c. 

First,  in  good  order  of  pleading  a  man  must  pleade  to  the 
jurisdiction  of  the  court.  Secondly,  to  the  person;  and  therein 
first  to  the  person  of  tllb  plaintife,  and  then  to  the  person  of  the 
defendant.  Thirdly,  to  the  court.  Fourthly,  to  the  writ. 
Fifthly,  to  the  action,  tfcc.  [a]  which  order  and  forme  of  pleading 
you  shall  reade  in  the  ancient  authors  agreeable  to  the  law  at  M  I^ffct"n,l!-5. 
this  day;  and  if  the  defendant  misorder  any  of  these  he  loseth  f^'  41  '^  &  122! 
the  benefit  of  the  former.  Fleta,  li.  6. 

The  count  must  be  agreeable  and  conforme  to  the  writ,  the  ea-^a,  36.  Ac, 
barre  to  the  count,  &c.  and  the  judgment  to  the  court;  for  jj-  ^  3  -^  ' 
none  of  them  must  be  narrower  or  broader  than  the  other.  8  E.  3.  5.  &  9. 

A   count  or  declaration,  which   anciently  and  yet  is  called  35  H.  6. 12. 

narratio,  ought  to  containe  two  things  [h]  viz.  certainty  and 

verity,  for  that  it  is  the  foundation  of  the  suite,  whereunto  the  [o  121  1""' 

adverse  party  must  answer,  and  whereupon  the  court  is  to  give  3  E.  4.21. 

his  iudgement:   fcl  Cerfa  debet  esse  intentio  et  narratio,  et  certum  "V'id.  lib.  .'j. 

f  andamentum,etcerta  res  qnwdeducitur  in  judicium.  But  it  must  ^,.17^  '.j'  ' 

be  understood  that  there  be  three  kindc  of  certainties;  first,  to  a  lib.  2.  fo.  140, 

common  intent,  and  that  is  sufficient  in   a  barre  which  is  to 

defend  the  party  and  to  excuse  him.  ^  [ri]  Secondly,  a  certaine  \d]  Lib.  5.  120, 

intent  in  generall,  as  in  courts,  replications,  and  other  pleadings  121.  Long's  ca. 

of  the  plaintife,  that  is  to  convince  the  defendant,  and  so  in  w-    v"V  ''■ '' 
•     T         ^  II  rni  •    11  •        •  •  -1  >\  imbishe  s 

inditements,  &c.     Ibirdly,  a  certaine  intent  in  every  particular,  case. 

as  in  estoppels  (B). 

He 

(B)  Ace.  pout.  352.  h.  o«  to  the  third  kind  of  certainty.  Yet,  in  5  liej).  121.  lord  Coke 
8ni/>i,  that  certainty  to  a  certain  intent  in  erery  particular  is  rejected  in  laic, /or  that  nimia 
.«ubtilitas  in  jure  reprobatur,  &  talis  certitudo  eertitudinum  confundit.  On  the  three 
kindi  of  certainty  mentioned  in  the  tc.rt,  and  particularly  icith  respect  to  thecertainty  ichich 
is  required  in  a  charge  or  accusation,  see  the  judgment  delirered  by  Do  Grey,  Chief 
Justice,  in  the  case  of  Rex.  v.  Home,  in  Dom.  Proc.  11  May  18  Geo.  3.  Coup.  672.  CS2. 
See  also  The  King  v.  The  Mayor  and  Burgesses  of  Lyme  Regis,  Doug.  149.  158.  In 
Comyn's  Digest  various  instances  of  certainty  are  mentioned,  for  ichich  see  the  references 
there  under  the  head  Certainty. 


303.  a.]  Of  Confirmation.       L.  3.  C.  9.  Sect.  534. 

[e]  7  H.  6. 17.  [rl  He  pleadeth  a  plea  in  abatement  of  the  writ  (which  of 

PI  C       33  b  ''^^'^'i^'^^  times  was,  and  yet  is  called   hreve)  or  a  plea  after  the 

latter  continuance,  ought  to  plead  it  certainly. 
[/■]  34  H.  6.  48.        [/]  The  ancient  formes  of  courts  are  to  be  duly  observed,  as 

8  H.  5.  4.  b.  cum  dimisit,  cum  dedit,  and  not  to  say,  that  he  was  seised  and 
V'^'o\l^'  demised,  &s.  (And  yet  if  he  say  so,  it  maketh  not  the  count 
39  H.  6.  3*.  vicious)  [y]  but  in  a  barre  replication  or  other  kinde  of  pleading, 

10  H.  6.  2.  the  party  must  alledge  a  seisin  in  the  lessor  or  donor,  and  ancient 
r^  ?s  E  ^'f'g       formes  of  pleading  are  also  to  be  observed. 

2  H.  4.  13.'   6  H.  4.  2.  b.     10  E.  4.  2.     F.  N.  B.  156.  C.     11.  E.  3.     Aide,  32. 

9  H.  6.  59.  10  E.  4.  4. 

[h]  PI.  Com.  [/t]  Counts,  or  such  as  be  in  nature  of  counts,  (as  an  avowry, 

Bret's  case,  342.   wherein  the  defendant  is  an  actor)  need  not  to  be  averred,  but  all 
27  H  6  9  H  7    ^^^^''■'  pleas  in  the  affirmative  ought  to  be  averred,  ct  hoc paratum 
est  verijicare,  &c.  but  pleas  meerly  in  the  negative  ought  not  to 
be  averred,  because  a  negative  cannot  be  proved, 
n  40  E  '  SI  t'-l  ^'^^^^^  there  is  but  one  tenant  or  one  defendant,  he  cannot 

32,  33.  '  ^      '     have  two  such  pleas,  as  each  of  them  doe  go  to  the  whole  :  but 

41  E.  3. 11.  where  there  are  divers,  each  of  them  may  pleade  several  pleas 

27^  ^^^81  which  extend  to  the  whole  (1). 

44  E.  3.  23.    45  E.  3.  Double  plea,  39.     43  E.  3.  21.     36  H.  6.  29.     37  H.  6.  23. 
33  H.  6.  51.     15  E.  4.  25.     7  H.  4.  12.     41  E.  3.  Double  plea,  78. 

[ic]  PL  Corn.  81.       V^'\  That  which  is  alledged  by  way  of  conveyance  or  induce- 

11  H.  4.  89.  ment  to  the  substance  of  the  matter  need  not  to  be  so  certainly 
?,t T?',.^'.'^^'.        alledged,  as  that  which  is  the  substance  ilfselfe. 

19  R.  2.  Action  *=     ' 

sur  le  case.  52.     22  E.  3.  19.     30  E.  3.  9. 

[/]  5  H.  7.  8.  [Z]  Every  plea  must  be  direct,  and  not  by  way  of  argument  or 

6  E.  4.  2.  rehearsall. 

21  E.  4.  44. 

27  H.  8.  4.     22  H.  6.  17  E.  4.  7.     22  E.  4.  S. 

[/»]  PL  Com.  [ni]  Where  a  matter  of  record  is  the  foundation  or  ground  of 

376%  410  *^^  suite  of  the  plaintife,  or  of  the  substance  of  the  plea,  there  it 

22  H.  6.  38.  ought  to  be  certainly  and  truly  alleged;  otherwise  it  is,  where 
19  H.  6.  49.  it  is  but  conveyance.  But  the  proceedings  and  sentences  in  the 
Vr  v  "'  I  ecclesiasticall  courts  may  be  allegded   summarily :    as   that   a 

36  H.  0.  5.  ,.  Ill  *^  1        °     •         p  1  1 

21  E.  4.  54.  divorce  was  had   between  such  parties,  tor  such  a  cause,  and 

11  H.  6. 15.  before  such  a  judge,  and  conciirrentihtis  hiis  quce  in  jure  requi- 
38  H.  6.  23. 

42  Ass.  3.  48  E.  3.  11.  4  E.  4.  12.  9  E.  3.  46.  21  E.  4.  52.  35  H.  6.  35. 
10  H.  7.  9.  15.  11  H.  7.  8.  22  E.  3.  2.  .34  H.  6.  27.  12  H.  8.  5.  6.  7  E. 
4.  32.     9  E.  4.  24.     8  E.  4.  31.     8  Ass.  29.     5  E.  4.  70.     3  E.  4.  1. 

riintnr  ; 


(1)  This  is  altered  by  4  Ann.  cap.  16.  sect.  4  &  5.  by  which  it  is  enacted, 
that  it  shall  be  lawful  for  any  defendant  or  tenant,  in  any  action  or  suit,  or  for 
any  plaintiff  in  replevin,  in  any  court  of  record,  with  the  leave  of  the  same 
court,  to  pleade  as  many  several  matters  thereto  as  he  shall  think  necessary  for 
his  defence;  but  it  is  thereby  also  provided,  that  if  any  such  matter,  upon  a 
demurrer  joined,  be  judged  insufficient,  costs  shall  be  given  at  the  discretion  of 
the  court;  or  if  a  verdict  shall  be  found  upon  any  issue  in  the  said  cause  for 
plaintiff,  or  the  defendant,  costs  shall  be  also  given  in  like  manner,  unless  the 
judge,  who  tried  the  said  issue,  shall  certify  that  the  defendant,  tenant,  or 
plaintiff  in  replevin,  had  a  probable  cause  to  plead  such  matter,  which  upon  the 
said  issue  shall  be  found  against  him. — Note  to  the  11th  edition. — [Note  267.] 


L.  3.  C.  9.  Sect.  534.     Of  Confirmation.    [303.  a.  303.  b. 

rimtur  ;  for  the  judge  must  be  alledged,  to  the  intent  the  court 
may  write  to  him  if  it  be  denied. 

Good  matter  must  be  pleaded  in  good  forme,  in  apt  time,  and 
in  due  order  or  otherwise  great  advantages  may  be  lost. 

[303.1       [n]  OCT'  General  estates  in  fee  simple  may  be  gene-  [»]  35  n.  6.  35. 
b.     J  rally  alledged,  but  the  commencement  of  estates  tayle,  q^f'/'/^" 
and  other  particular  estates  regularly  must  be  shewed,   ^g  h_  g_  73^ 
unlesse  in  some  cases  where  they  are  alledged  by  way  of  induce-  5  E.  4.  12. 
ment,  and  the  life  of  tenant  in  taile,  or  for  life  ought  to  be  lOE.  4. 18. 
averred.  ^'^  ^  g-  pj-^^j 

ing,  Br.  160. 

[o]  When  any  speciall  and  substantiall  matter  is  alledged  by  [o]  V.  Sect.  193. 
either  party,  that  ought  to  be  especially  answered,  and  not  to  be   '■^  ^-  ^-  ^'^• 
passed  over  by  a  generall  pleading.  ^^i'^.  ^9  ^^' 

22  Ass.  45.  2  E.  3.  42.     13   E.  ?>.  Anc.  Demesne,  15.     20  E.  3.  ib.  45.  "  TH.  7.  8. 

Lib.  10.  fo.  91.     Li.  11.  fo.  10. 

[p]  the  plea  of  every  man  shall  be  construed  strongly  against   [p]  3  n.  7.  3. 
him  that  pleadeth  it,  for  everie  man  is  presumed  to  make  the   ?^  f^^\  ^?' , 
best  of  his  owne  case  :  amhlguum  placUum   interpreturi  debet  27  H.  6.  8.  h. 
contra  prof erentem.  21 11.  6. 

Debt,  43. 
7  H.  6.  24  31.     35  H.  6.  48.    47  E.  3. 14.     PI.  Com.  4G.  a.  Li.  3.  fb.  59, 
Line.  Col.  case. 

[^]  Every  plea  that  a  man   pleadeth  ought  to  be  triable,  for  [?1  22  E.  4. 

without  triall  the  cause  can  receive  no  end  :  et  expecUt  rei  pub-  f^'J'  ?"  ,„ 

liise  ut  sitjiiiis  iitmm.  21  E»  4.  36. 

22  H.  6.  50! 

[r]  The  tenant  before  his  default  saved,  may  plead  all  pleas  W  40  E.  3.  40. 

which  prove  the  writ  abated,  as  death,  &c.  or  matters  apparent  4i'e. '3.  2. 

in  the  writ;  but  no  plea,  which  proves  it  abateable,  as  taking  of  is  E.  3. 16. 

husbands,  &c.  26  E.  3.  68. 

'  42  E.  3.  3. 10. 46, 

6  E.  3.  37.  8  E.  3.  20.  10  E.  3.  60.  M  H.  4.  15.  12  E.  4. 1.  38  E.  3.  28. 

7  H.  7.  3. 

[s]  When  a  man  is  authorised   to  doe  anything  by  the  com-  H  10  E.  4.  3. 

mou  law,  by  grant,  commission,  act  of  parliament,  or  by  cus-  g^jf  V^q' 

tome,  he  ought  to  pursue  the  substance  and  effect  of  the  same  9  h.'  7.'  26." 

accordingly.  37  H.  6. 1. 

27  H   8   13 
21  n.  7.  25.      11  II.  4.  33.      PI.  Com.  79.      16  E.  4.  10.      1  K.  7.  33 
20  H.  7.1.  6  E.  4.4.  5.  21  E.  4.  54.  22  H.  6. 47.  IIH.6.8.  2&E.3.  SO'.b. 
23  Ass.  7.     2  Eliz.  Dyer,  184. 

[t'\  All  necessary  circumstances  implied  by  law  in  the  plea  [<]  Pi-  Com.  149. 

need  not  to  be  expressed,  as  in  the  plea  of  a  feoffment  of  a  man-  07  «^ft^q*' 
nor,  livery  and  attornement  are  implied.  '    '     * 

[vi]  When  a  count,  barre,  replication,  &c.  is  defective  in  respect  ["]  18  E.  4. 16.  b. 

of  omission   of  some  circumstance,  as  time,  place,  &c.  there  it  "^^u'-^'yi  ^^' 

may  be  made  good  by  the  plea  of  the  adverse  party ;  but  if  it  be  38  il.  6. 17, 

insufficient  in  matter,  it  cannot  be  salved.  18,  19. 

18  E.  3.  34. 
PI.  Com.  229.  b.     Lib.  8.  133.     Turner's  case. 

\io]  Every  man  shall  plead  such  pleas  as  are  pertinent  for  him    F"]  5  IL  7.  34. 
according  to   the  quality  of  his  case,  estate,  or  interest,  as  dis-    %^\{^'f^^,ia 
seisors,  tenants,  incumbents,  crJinaries,  and  the  like. 

Surplusage 


303.  b.]  Of  Confimiation.      L.  3.  C.  9.  Sect.  534. 

[.r]  19  H  6.  [.r]  Surplusage  shall  »ever  make  the  plea  vicious,  but  where 

PI  C^      2.32  b    ^*  ^^  coQtrarient  to  the  matter  before  (1). 
&  fo.  502,  per  Dyer,  &  503. 

[;/]  13  II.  4.  17.        [^]  That  which  is  apparent  to  the  court  by  necessary  collec- 

33  H  6  54  ^^'^^  ^^^  °^  ^^^^  record  need  not  be  averred. 

36  H.  6.  30.    21  H.  7  32.    Bract,  li.  3.  fo.  154.     PI.  Com.  87.  b.     26  H.  6.  Gard.  58. 

[a]  2  H.  7. 15.  [cf]  A  man  is  bound  to  perform  all  the  covenants  in  an  inden- 

10  H^'^12  ^^^^  •  ^^  ^^^  *^^  covenants  be  in  the  affirmative,  he  may  generally 

i;5  h!  7. 19.  plead  performance  of  all ;  but  if  any  be  in  the  negative,  to  so 

26  H.  8.  5.  b.  many  he  must  plead  specially  (for  a  negative  cannot  be  per- 

[h]  Li.  8.  fo.  133.  formed),  and  to  the  rest  generally,      [b]  So  if  any  be  in  the  dis- 

''^"/°i9f  ^'^^^'  junctive,  he  must  show  which  of  them  he  hath  performed.  So  if 

Bunham'scase  ^^J  ^^^  ^^  ^e  done  of  record,  he  must  shew  that  specially,  and 

Li.  9.  2.5.  61.  cannot  involve  that  in  generall  pleading. 

Li.  10.  100.  |-,.j  Jq  many  cases  the  law  doth  allow  generall  pleading,  for 

2R  3  17.     '  '  avoyding  of  prolixity  and  tediousnesse,  and  that  the  particular 

14  E.  4.  7.  shall  come  on  the  other  side. 
9  E.  4. 19.  |-ff|  Pleadings  which  amount  to  the  generall  issue  are  not  to 

34  H*6  5  '  '  ^^  allowed ;  but  the  generall  issue  is  to  be  entred.  Vid.  Sect. 
ioH.'e.'e.&n.  10.485.499. 

12  E.  4.  IL  14. 

14  H.  8.  24.     7  E.  3  12.     17  E.  3.  44. 

[e]  18  H.  6.  33.        [p]  Every  plea  ought  to  have  his  proper  conclusion,  as  a  pica 

22  H.  6.  53.         to  the  writ  to  conclude  to  the  writ,  a  plea  in  barre  to  conclude 

.38  H  6  18''>5     *^  *'^^  action,  an  estoppell  to  relie  upon  the  estoppells :  et  sic  de 

5  E.  3.  15.  16.      similibus. 

22  Ass.  3.3. 

2  Eliz.  Dyer,  184. 

[/]  PL  Com.  14,  [/]  When  the  conclusion  of  a  plea,  et  issint,  et  sic,  is  in  the 
15.  2  E.  4. 18.  affirmative,  it  shall  not  wave  the  speciall  matter,  for  there  the 
33  8  E  3'  5"'  speciall  matter  is  the  substance  and  foundation  of  the  conclusion, 
Qii.  Imp.  25.       and  affirmed  by  the  same.     But  where  the  conclusion  is  in  the 

18  H.  6.  30.         negative,  there  the  speciall  matter  regularly  is  waived. 

38  Ass.  14.     24  E.  3.  48.     22  E.  3.  13.     38  H.  6.  25.     32  H.  6.  14. 

19  H.  8.  7.     27  H.  8.  12.  b. 

[(/]  Whensoever  speciall  matter  is  pleaded,  and  the  conclu- 
sion (et  sic)  is  to  the  point  of  the  writ  or  action,  the  speciall  mat- 
ter is  waived. 

The  names  of  legall  records  are,  a  writ,  a  count,  a  barre,  a 
replication,  a  rejoynder,  a  rebutter,  a  surrebutter,  &c. 

[A]  New  and  subtill  devices  and  inventions  of  pleadings  ought 
not  to  alter  any  principle  of  law,  whereof  you  have  heard  plenti- 
fully before. 

The  count  or  declaration  is  an  exposition  of  the  writ,  and 
addeth  time,  place,  and  other  necessary  circumstances,  that  the 
same  may  be  triable ;  and  any  imperfection  in  the  count  doth 
abate  the  writ. 

Pleadings  are  divided  into  barres,  replications,  rejoynders,  sur- 
rejoynders,  rebutters,  and  surrebutters,  &c.     They  are  words  of 

art. 


Ig]  7  E.  4. 

26. 

11  H. 

7.4. 

12  H. 

7.6. 

36  H. 

6.  9. 

37. 

43. 

m  V. 

Sect 

.485. 

(1)  And  then  it  does,  because  the  plaintiff  cannot  discern  what  to  answer  to 
in  his  replication. — Xote  to  the  11th  edition. 


L.  3.  C.  9.  Sect.  534.    Of  Confirmation.    [303.  b.  304.  a. 

art,  and  are  called  barres,  harrse,  so  called,  because  it  barreth 
the  plaintife  of  this  action.  Replicationes,  a  replicando ;  re- 
junctioncs,  a  rcjiingendo  ;  rebutter,  of  the  French  word  rehouter, 
i  e.  a  repellendo,  to  put  backe  or  avoide,  and^so  of  surrebutter. 

But  each  party  must  take  heed  of  the  ordering  of  the  matter 
of  his  pleading,  lest  his  replication  depart  from  his  count,  or  his 
rejoynderfrom  his  barre;  et  sic  de  casteris. 

[t]  In  ancient  writers  a  barre  is  called  eocceptio  jjer emptor la  ;  [/]  Bract,  li.  5. 
a  replication  was  then  called  repUcatio,  as  now  it  is;   a  rejoinder  fo.  400. 
triplication    a  surrejoinder,  qicadriplicatio ;    et  sic  ulterius  in  Flet.  h.  6.  ca.  37. 

injinitum. 
r304."|  B^"  A  departure  in  pleading  is  said  to  be  when  the  (Sid.  10.  77. 
|_     a.     J   second  plea  containeth  matter  not  pursuant  to  his  for-  176.  277. 

mer,  and  which  fortifieth  not  the  same,  and  thereupon  j  cr^"  HI') 
is  called  decessxts,  because  he  departeth  from  his  former  plea;  39  k's.  13.  b. 
and  therefore  whensoever  the  rejoynder  (taking  one  example  for  39  H.6. 15. 
all)  containeth  matter  subsequent  to  the  matter  of  the  barre,  and  2i^h'^6^32 
not  fortifying  the  same,  this  is  regularly  a  departure,  because  it  pj  qqj^_  jok 
leaveth  the  former,  and  goeth  to  another  matter.     As  if  in  an  1  Mar. 
assise  the  tenant  plead  a  discent  from  his  father,  and  giveth  a  ^^y^'  ^^^^  ^^ 
colour,  the  demandant  intituleth  himselfe  by  a  feofiFement  from  (Doc.  Pla.  119'. 
the  tenant  himselfe,  the  plaintife  cannot  say,  that  that  feoffement  1  Cro.  228. 
was  upon  condition,  and  to  shew  the  condition  broken ;  for  that  229.  257.) 
should  be  a  cleare  departure  from  his  barre,  because  it  contain-  3  jj|  g 
eth  matter  subsequent.     But  in  an  assise,  if  the  tenant  pleadeth  Departure,  2. 
in  barre,  that  I.  S.  was  seised  and  infeoffed  in  him,  &c.  and  the 
plaintife  sheweth,  that  he  himsefe  was  seised  in  fee,  until  by  /.  S. 
disseised,  who  infeoffed  the  tenant,  and  he  re-entred,  the  defend- 
ant may  plead  a  release  of  the  plaintife  to  /.  S.  for  this  doth 
fortifie  the  barre. 

If  a  man  plead  performance  of  covenants,  and  the  plaintife  (Sid.  10.  77. 
reply,  that  he  did  not  such  an  act  according  to  his  covenant,  the  180-  404.) 
defendant  saith,  that  he  offered  to  do  it,  and  the  plaintife  refused  23^Ei.''Dy.  m. 
it ;  this  is  a  departure,  because  the  matter  is  not  pursuant :  for  6  E.  3.  3. " 
it  is  one  thing  to  doe  a  thing,  and  another  to  offer  to  doe  it,  and  40  E.  3.  32. 
the  other  refused  to  doe  it :   therefore  that  should  have  been  ^^  ^-  ^-  ^^' 
pleaded  in  the  former  plea.      Vide  &  cave  in  a  q^iiare   impedit,  1  e.  4.  "4. 
what  plea  shall  be  safely  pleaded  in  primo  placito.  18  E.  4.  24. 

When  a  man  in  his  former  plea  pleadeth  an  estate  made  by  ^  ^-  ^-  ^^• 
the  common  law,  in  the  second  plea  regularly  he  shall  not  make  33  h,  g,  14, 
it  good  by  act  of  parliament.     So  when  in  his  former  plea  he  (Cro.  Car.  257. 
intituleth  himselfe  generally  by  the  common  law,  in  his  second  Jg^T°*^"  ^'^• 
plea  he  shall  not  enable  himselfe  by  a  custome,  but  should  have  pi_  "com.  105.  b. 

pleaded  it  first.  Fulmerston's 

If  a  man  plead  an  estate  generally,  (as  for  example  a  feoffe-  ^^^e^ 
ment  in  fee),  he  in  his  second  plea  shall  not  maintain  it  by  other  27  h.  8.  3. ' 
matter  tantajnount  in  law,  as  by  a  disseisin  and  release,  or  by  a  21  H.  7.  17. 
lease  and  release,  or  a  gift  in  taile  in  barre,  and  in  the  second  ^^  H.  6.  5. 
plea  a  recovery  in  value;  for  this  is  a  departure;  but  he  in  that  (gaund.  142. 
case  shall  count  of  a  gift,  and  maintaine  it  in  his  replication  by  s.  C.  1  Leo.  81. 
a  recoverv  in  value,  because  he  could  have  no  other  count.  S.  C.  Raym.  60. 

•'  '  Sid.  142.) 

21  H.  7.  25.     1  E.  4.  4.    3  H.  7.  5.    7  H.  7.  2. 

See  more  of  this  matter,  where  the  plaintife  varying  from  Vid.  Sect.  485. 
time  or  place  alledged  in  the  count  of  actions  transitory,  shall 
commit  no  departure. 

The 

Vol.  II.— 32 


304.  a.] 

PI.  Com.  139. 
142. 


*Fleta,li.  6. 
ca.  35  (A.)_ 
Bracton,  li.  5. 
fol.  400. 


17  E.3.  73. 
(Doc.  Pla.  135.) 


39  H.  6.  27. 


(Ante,  139.  a.) 


Hil.  ?,1  E.  1. 
Cor.  Reg.  in  fine 
rotul. 


Of  Confirmation.     L.  3.  C.  9.  Sect.  534. 

The  plea  that  containes  duplicity  or  multiplicity  of  distinct 
matter  to  one  and  the  same  thing,  whereunto  severall  answers 
(admitting  each  of  them  to  be  good)  are  required,  is  not  allow- 
able in  law.  And  this  rule  you  see  extendeth  to  pleas  perpetuall 
or  peremptory,  and  not  to  pleas  dilatory ;  for  in  their  time  and 
place  a  man  may  use  divers  of  them  ;  and  hereof  ancient  writers 
*  speake  notably  :  Skui  acta  %i,nd  actione  debet  experirl  saltern 
ilia  durante,  sic  ojwrtet  tenentem  una  exceptione  dum  tamen  pe- 
remjitorid  (^quod  cle  dilutoriis  non  est  tenendum)  ;  tpiia  si  liceret 
plurihus  uti  exceptionihus pcremptoriis  simul  &  semel,  sicut  fieri 
poterit  in  dilatoriis,  sic  sequeretur,  quod  si  in  purhatione  unius 
defecerit,  ad  aliam  jjrobandum 2)oss it  habere  recursum,  quod  non 
est  permissibile,  non  magis  qvdm  aliquem  se  defendere  duobus 
baculis  in  duello,  citm  unus  tantinn  sujficiat. 

But  where  the  tenant  or  defendant  may  pleade  a  general 
issue,  thereupon  the  generall  issue  pleaded,  he  may  give  in  evi- 
dence as  many  distinct  matters  to  barre  the  action  or  right  of 
the  demandant  or  plaintife,  as  he  can  (1). 

A  spcciall  verdict  may  contains  double  or  treble  matter;  and 
therefore  in  those  cases  the  tenant  or  defendant  may  eyther  make 
choice  of  one  matter,  and  to  plead  it  to  barre  the  demandant  or 
plaintife,  or  to  plead  the  general  issue,  and  to  take  advantage  of 
all ;  or  he  may  plead  to  part  one  of  the  pleas  in  barre,  and  to 
another  part  another  plea ;  and  his  conclusion  of  his  plea  shall 
avoide  doublenesse,  and  hereby  neither  the  court  nor  the  jury 
is  so  much  inveigled,  as  if  one  plea  should  containe  divers  dis- 
tinct matters.  And  if  the  tenant  make  choice  of  one  plea  in 
barre,  and  that  be  found  against  him,  yet  he  may  resort  to  an 
action  of  an  higher  nature,  and  take  advantage  of  any  other 
matter.  And  the  law  in  this  point  is  by  them  that  understand 
not  the  reason  thereof  misliked,  saying,  Xemo  prohibetur  pluri- 
hus de/ensionibus  uti. 

And  it  is  worthy  of  observation,  that  in  the  raignes  oi  Edward 
the  second,  Edicard  the  first,  and  upwards,  the  pleadings  were 
plain  and  sensible,  but  nothing  curious,  evermore  having  chiefe 
respect  to  matter,  and  not  to  formes  of  words,  and  were  often 
holpen  with  a  quxsitum  est,  and  then  the  questions  moved  by  the 
court,  and  the  answers  by  the  parties  were  also  entred  into  the 
rolle.  But  even  in  those  dayes  the  formes  of  the  register  of 
originall  writs  were  then  punctually  observed,  and  matters  in  law 
excellently  debated  and  resolved ;  and  where  any  great  diflSculty 
was,  then  it  was  resolved  by  all  the  judges  and  sages  of  the  law 
(who  were  for  mattei's  in  law  called  concilium  regis)  and  their 

assembly 


(A)  For  the  Latin  quotation  in  the  text,  see  Fleta,  li.  6.  ca.  36.  §  12. 


(1)  It  is  natural  to  plead  first  to  the  jurisdiction,  and  afterwards  to  the  writ  of 
the  count.  Nota,  The  brief  ranked  before  the  count,  17  Edw.  3.  74.  Nota,  Upon 
default  in  the  count,  the  judgment  shall  be  that  the  brief  shall  abate.  3  Hen.  6. 
41.  9  Hen.  Q.  10.  Brooke,  Count,  1'^.  T7()?e303.  i.  Therefore,  as  it  seems, 
it  is  more  projjer  to  reserve  the  exception  to  the  tor  it  for  the  last  place,  if  the  first 
fails.  In  special  cases  the  order  of  pleading  is  not  observed  ;  as  for  example,  a 
defendant  in  debt,  in  the  custody  of  the  sheriff,  was  permitted  to  plead  a  plea  in 
abatement  of  the  lorit  before  any  count  was  made,  and  before  any  other  of  the 
defendants  came  in.  S  Hen.  Q.  Fitz.  I)ebt,20.  Lord  Willoughby  and  other 
defendants  in  assise  against  Wimbish,  pleaded  in  abatement  of  the  writ  before 
any  count  icas  made.     Plowd.  Com.  73.— Lord  Nott.  MSS.— [Note  268.] 


L.  3.  C.  9.  Sect.  534.  Of  Confirmation.  [304.  a.  304.  b. 

assembly  and   resolution  was   entred  into  the  rolle.      As  for 

example,  in  the  great  case  in  a  quare  impedit,  between  the  king 

and  the  prior  of  Worchester,  concerning  an  appropriation,  whether 

it  where  a  mortmaine,  the  record  saith,  ad  quern  diem 

[3  04. "I  prsedistus jirior per  attornatum  suum,  &c.  Et  OO"  ex- 
b.  J  aminatiset  intellectisrecordoetprocessu  coram  (otocon- 
cilio  tarn  thesaurario  et  haronibiis  de  scaccario  qndm 
cancellario,  ac  etiam  justiciariis  de  utroque  haiico  in spicta  causa. 
2)ro  qua,  pro  domino  re(je  dicunt^  quod  adipsum  regem  pertinet 
prsesc7it(ire,  &c.  considerafum  est,  &c.  For  in  those  days  though 
the  chancellor  and  treasurer  were  for  the  most  part  men  of  the 
church,  yet  where  they  expert  and  learned  in  the  lawes  of  the 
realme. 

As  for  example,  in  the  time  of  the  Conqueror,  Egelricus  epis- 
copiis  Cicestrensis  vir  antiquissimus,  et  in  legihus  sajnentissimus, 
as  elsewhere  I  have  said. 

[a]  Nigellus  episcopus  Eliensis  Hen.  1.  tJiesaurarius  in  tempo-  [a]  Ockham, 
ribus  suisiucomparabilem  hubuit  scaccariiscientiam,  etdeeadem  ^°'  ^'^• 
scripsit  optime. 

[A]  Ilenricus  cant,  episcopus,  IT.  Dunelm'  episcopus,   Williel-  [6]  Pasc.  5.  R.  1 . 
mus  Eliensis  episcopus,  G.  Roffens.  episcopus.  ^^"^^  I'^ege. 

[c\  Martinus  de  Fateshul  clericus  decanus  Divi  Pauli  London'  [c]  1  H.  3.  Rot. 
constitulus  fuit  capitalis  Justic   de  banco,  quia  in  legibus  hujus  "^^  '    '■''<^'- s»pe. 
regni  peritissimus. 

[c/]  WiU'us  de  Raleigh  clericus  justiciarius  domini  regis.  [d]  Bract,  saepe.' 

[e]  Johannes  episcopus  Carliensis  tempore  JI.  3.  '■*-' 

jRoberlus  Passelewe  episcopus  Cicestrensis  tempore  II.  3. 

[y]  Robertusde  Lexintonio  clericus  constitutus  capitalis  justic'  k{  jr  o    ^ 
de  banco. 

[7]  Johannes  Britton  episcopus  Hereford.  [g-]  Liberejus 

[A]  Ilenricus  de  Stanton  clericus  constitutus  fuit  capitalis  jus-  de  legibus  extat. 
ticiarius  ad  placita  ;  with  many  others.    And  so  were  divers  and  ^^  Rot.  pat. 
many  of  the  nobility,  who  when  matters  of  great  difficultie  were  17  E.  2. 
brought   into  the  upper  house  of  parliament  by  writ  of  error, 
adjournement,  or  other  parliamentary  course,  did  by  the  assistance 
of  the  reverend  judges,  who  ever  attended  in  that  court,  judge 
and   determine  the  same,  as  by  former  and  ancient  record,  and 
specially  by  the  said  record  of  5  R.  1,  doe  manifestly  appeare; 
and  therefore  the  lords  of  parliament  were  called  for  those  pur- 
poses, concilium  reges ;  and  like  to  the  aforementioned  record 
there  be  very  many. 

In  the  reigne  of  Edward  the  third  pleadings  grew  to  perfection 
both  without  lamenesse  and  curiosity;  for  then  the  judges  and 
professors  of  the  law  were  excellently  learned,  and  then  know- 
ledge of  the  law  flourished,  the  Serjeants  of  the  law,  &c.  drew 
their  owne  pleadings ;  and  therefore  truly  said  that  reverend 
justice  Thirning,  in  the  vAignQoi H.  4,  that  in  the  time  of  Edic.  3.  12  H.  4.  3. 
the  law  was  in  a  higher  degree  than  it  had  been  any  time  before ; 
for  (saith  he)  before  that  time  the  manner  of  pleading  was  but  - 
feeble  in  comparison  of  that  it  was  afterward  in  the  raigne  of 
the  same  king. 

In  the  time  of  Henrie  the  Sixth  the  judges  gave  a  quicker  eare 
to  exceptions  to  pleadings,  than  either  their  predecessors  did, 
or  the  judges  in  the  raigne  of  Edw.  the  fourth,  when  our  author 
flourished,  or  since  that  time  have  done,  giving  no  way  to  nice 
exceptions,  so  long  as  the  Substance  of  the  matter  were  suffi-  (Hob.  332. 
ciently  shewed.    And  as  in  the  raigne  of  king  Edward  the  third,  ^^^^>  ^2«  a.) 

by 


304.  b.  305.  a.]  Of  Confirmation.  L.  3.  C.  9.  S.  535-6-7. 

[«]36E.3.ca.l5.  by  an   act  of  parliament  [*]  it  is  provided,  that  counts  or  de- 

if  ^W'\ "'"  clarations  should  not  abate  so  long  as  the  matter  of  the  action 

Li.  8.  fo.  161.       I's  fully  shewed  in  the  declaration  and  writ;  so  since  our  author 

Lib.  10.  fo.  131.    wrote  in  the  raigne  of  queen  Elizabeth,  provision  is  made,  that 

(Doc.pla.  116.)    after  demurrer  the  judges  shall  give  judgement  according  to 

PI.  Com.  42l!       the  right  of  the  cause  and  matter  in  law,  without  regarding  any 

imperfection,   defect,  or  want  of  forme  in  any  writ,  retorne, 

plaint  declaration,  or  other  pleading  or  course  of  proceeding 

whatsoever,  except  such  as  the  party  demurring  shall  specially 

shew.    In  which  acts  appeales  and  indictments  of  felony,  murder, 

or  treason  concerning  man's  life,  and  the  forfeiture  of  his  lands 

and  goods,  are  excepted.     An  excellent  and  a  profitable  law, 

concurring  with  the  wisedome  and  judgement  of  ancient  and 

latter  times,  that  have  disallowed  curious  and  nice  exceptions 

tending  to  the  overthrow  or   delay  of  justice ;  apices  Juris  non 

sunt  jura:  yet  it  it  is  good  for  a  learned  professor  to  make  all 

things  plain  and  perfect,  and  not  to  trust  to  the  after  aide  or 

amendment    by  force    of  any    statute,  lest  his  client's  cause 

matcheth  not  therewith ;  and  as  it  is  in  physicke  for  the  health 

of  a  man's  body,  so  it  is  in  remedies  for  the  safety  of  a  man's 

cause.     In  \?iVf  praestat  cautela  qndm  medela. 

But  now  let  us  returne  to  our  author. 


(Sid.  175,  176.) 

(Doc.  Pla..  70.  i 

118.  136.  138.  254.)     (11  Rep.  52.  a.) 


Sect.  535,  536,  537. 


ALSO,  if  there  he  lord  and  tenant,  *  albeit  the  lord  confirme  the 
estate  which  the  tenaunt  hath  in  the  tenements,  yet  the 
seigniorie  remaineth  intire  to  the  )|@°°  lord  as  it  was  before.    ["305.1 


Sect.  536. 

TIT  the  same  manner  is  it,  if  a  man  hath  a  rent  charge  out  ofcertaine 
land,  and  he  confirme  the  estate  ivhich  the  tenant  hath  in  the  land, 
yet  the  rent  charge  remayneth  to  the  confirmor. 


Sect.  537. 

TN  the  same  manner  it  is,  if  a  man  hath  common  of  pasture  in  other 

land  (si  un  home  ad  common  de  pasture  f  en  auter  terre),  if  he 

confirme  the  estate  of  the  tenant  of  the  layid,  nothing  shall  passe  from 

him  of  his  common  ;  but  notwithstanding  this,  thecommon  shall  remayne 

to  him,  as  it  was  before. 


HERE 
*  albeit — and,  L.  and  M.  and  Roll.  f  en — ou,  L.  and  M.  and  Eoh. 


L.  3.  C.  9.  Sect.  538.     Of  Confirmation.     [305  a.  305.  b. 

HERE  is  the  sixth  case  whereia  the  release  and  eonfirmatiou 
doe  differ;  for  by  the  release  (A)  of  the  seigniory,  rent 
charge  or  common  are  extinct.  And  so  these  three  Sections  be 
evident,  and  need  no  explication,  saving  that  some  doe  gather 
upon  these  last  two  Sections  and  the  next  ensuing,  that  a  man 
cannot  abridge  a  rent  charge  or  common  pasture  by  a  confirma- 
tion, as  he  may  doe  a  rent  service  in  respect  of  the  privitie 
betweene  the  lord  and  tenant,  so  as  (say  they)  a  tenure  may  be 
abridged  by  a  confirmation,  but  not  a  rent  charge  or  common  : 
and  therefore  Littleton  begiuneth  the  next  Section  with  an  ad- 
verbe  adversative,  viz.  {hut)  &c.  But  a  man  may  release  part  of 
his  rent  charge,  or  common,  &c. 


Sect.  538. 

'PUT  if  there  he  lord  and  tenant,  ivMch  tenaiit  Tioldeth  of  Ms  lord  hy 
the  service  of  fealtie  and  20  shillings  rent,  if  the  lord  hy  his  deed 
confirme  the  estate  of  the  tenant,  to  hold  hy  12  pence,  or  hy  a  penny,  or 
by  a  halfe  peny :  in  this  case  the  tenant  is  discharged  of  all  the  other 
services,  and  shall  render  nothing  to  the  lord,  hut  that  which  is  com- 
prised in  the  same  confirmation. 


A 


ND  the  reason  wherefore  no  service  of  another  (B)  cannot  28  E.  3.  92,  93. 
be  reserved  upon  the  confirmation  is,  because  as  long  as  the  26  Ass.  37. 
state  of  the  land  continueth,  it  cannot  by  the  confirmation  of  23o.'b.    ^ 
the  lord  be  charged  with  any  new  service.     So  as  it  is  evident  7  e.  4.  25.  a. 
that  the  lord  by  his  confirmation  may  diminish  and  abridge  the  21  E.  4.  62. 
services,  but  to  reserve  upon  the  confirmation  new  services  he  jo'^^Tdt 

cannot,  so  long  as  the  former  estate  in  the  tenancie  Avowri'e,  100. 

[ 30 5. ~|  continueth.      And    as   where    a   confirmation    doth  (9  Rep.  33.) 
b.     J  {!0~  inlarge  an  estate  in  land,  there  ought  to  be  pri- 
vitie, as  hath  beene  said ;  so  regularly  where  a  confir- 
mation doth  abridge  services,  there  ought  to  be  privitie  also. 

And  therefore  here  Littleton  putteth  his  case  of  lord  and  ten-  7  e.  3.  19. 
ant  betweene  whom  there  is  privitie.    And  therefore  if  there  be  22  E.  3.  is.  b. 
lord,  mesne  and  tenant,  the  lord  cannot  confirme  the  estate  of 
the  tenant  to  hold  of  him  by  lesser  services,  but  this  is  void, 
for  that  there  is  no  privitie  betweene  them,  and  a  confirmation 
cannot  make  such  an  alteration  of  tenures. 

And  the  case  in  4  E.  3,  maketh  nothing  against  this  opiAion;  4  e.  3.  19. 
for  there  the  case  in  substance  is  this :  John  de  Bonvile  held 
certaine  lands  of  Ralfe  Vernon,  and  before  the  statute  of  q^^ia 
emptores  terrarum,  levied  a  fine  of  the  same  lands  to  the  abbot 
of  Coijsall  and  his  successors,  to  hold  of  the  chiefe  lord  (which 
was  Ralfe  Vernon)  by  the  services  due  and  accustomed.  Ralfe 
Vernon  made  a  charter  to  the  said  abbot  in  these  words :  Concessi 
etiam  eidem  ahhati  ct  successor ibus  suis  relaxavi  et  quietum  da- 
mavi  totum  Jus,  &c.  quod  habeo,  vel  patera  habere  in  omnibus 
tenementis  quce  idem  abbas  habet  de  dono  Johannis  de  Bonvile, 

tenendum 

(A)  Here  the  word  "of,"  seems  printed  hy  mistake.     See  Mr.  Ritso's  Intr.  p.  120. 

(B)  Here  "canaot"  »ee»i«  printed  hy  mistake  instead  o/"can."    See  Mr.  liitso'a 
Intr.  p.  120. 


305.  b.] 


4  E.  3.  19. 
9  E.  3.  1. 

12  E.  4.  11. 
16E.  3.  Fines,  4. 
CEliz.Dier.230. 


(Ant.  47.  a.) 
(Plo.  563.  b.) 
Britton,  f.  57. 
177.     40  E.  3. 
21.  47,  48. 
18  E.  3,  26. 
50  Ass.  6. 
H  H.  4.  8. 


(Ant.  76.  a.) 


13  R.  2.  tit. 
Avowrie,  89. 
Nota  dictum 
Fitzh. 


(Ant  23.  a.) 


Of  Confirmation.    L.  3.  C.  9.  Sect.  538. 

tenendum  de  me  et  hseredihus  meis  in  jmrcnn  I'n  perpetuam  ehe- 
mosinam  ;  and  adjudged,  that  it  was  a  good  tenure  in  frankal- 
moigne :  which  case  proveth  nothing  that  the  lord  paramount 
may  by  his  confirmation  to  the  tenant  peravaile  extinct  the  mes- 
naltie  (as  it  is  abridged  by  master  Fitzhcrbert  in  the  title  of 
Confirmation,  pi.  21.)  for  the  immediate  lord  did  there  make 
the  said  charter,  and  not  any  lord  paramount  (And  therefore  it 
is  ever  good  to  relie  upon  the  booke  at  large,  for  many  times 
compendia  sunt  dispendia,  and  meliiis  est  petere  fontes,  qudm 
sectari  rividos.)  And  of  this  opinion  was  master  Flowden  upon 
good  advisement  and  consideration. 

And  here  is  the  seventh  case  wherein  the  release  and  confir- 
mation doth  ngree;  for  if  there  be  lord  and  tenant  by  fealty  and 
twenty  shillings  rent,  the  lord  may  release  all  his  right  in  the 
seigniorie  or  in  the  tenancie,  saving  fealtie  and  ten  shillings 
rent;  but  he  cannot  save  a  new  kinde  of  service,  for  he  may  as 
well  abridge  his  services  upon  a  release  as  upon  a  confirmation. 
And  as  there  is  required  privitie  when  the  lord  abridgeth  the 
services  of  his  tenant  by  his  confirmation ;  so  must  there  be 
also,  when  the  lord  by  his  release  abridgeth  the  services  of  his 
tenant.  And  therefore  the  lord  paramount  cannot  release  to  the 
tenant  peravaile  saving  to  him  part  of  his  services,  but  the 
saving  in  that  case  is  void  (1). 

''And  shall  render  nothing  to  the  lord,  hut  that  which  is  com- 
prised, &c."  Which  words  are  thus  to  be  understood;  that  the 
tenant  shall  not  render  any  more  rent  or  annuall  service  to  the 
lo"d  than  is  contained  in  thed  ed;  but  other  things  notwith- 
standing the  said  confirmation  the  tenant  shall  yeeld  to  the  lord, 
as  releefe,  &jde  jJur  Jile  marier, and  ayde  pur  /aire  Jitz  chivaler, 
because  these  are  incidents  to  the  tenure  that  remaine,  and  shall 
not  be  discharged  without  speciall  words,  by  the  generall  words 
of  all  other  actions,  services  and  demands.  And  so  if  a  man 
hold  of  me  by  knight's  service,  rent,  suit,  &c.  and  I  release  to 
him  all  my  right  in  the  seigniorie,  excepting  the  tenure  by 
knight's  service,  or  confirme  his  estate  to  hold  of  me  by  knight's 
service  only  for  all  manner  of  services,  exactions,  and  demands; 
yet  shall  the  lord  have  ward,  marriage,  releefe,  ayde  pur  file 
marier,  et  pur  /aire  fitz  chivaler,  for  these  be  incidents  to  the 
tenure  that  remaine.  But  it  is  holden,  that  if  a  man  make  a 
gift  in  taile  by  deed,  reserving  two  shillings  rent  a  luy  et  ses 
heircs  pro  omnibus  et  omnimodis  servitiis,  exactionibus  seculari- 
hus  et  cunctis  demandis,  if  the  donee  die  his  heire  of  full  age, 
the  donor  shall  have  no  releefe,  because  in  the  originall  deed  of 
the  gift  in  taile  it  is  expressly  limited,  that  by  the  service  of 
two  shillings  rent  he  shall  be  quite  of  all  demands  (and  releefe 
lieth  in  demand) ;  and  by  reason  of  those  words,  say  they,  there 
cannot  any  releefe  become  due ;  but  some  doe  hold  the  contrary 
in  that  case. 

Sect. 


(1)  3  Inst.  47.  A  saving  will  serve  for  any  thing  that  is  implied  in  the 
judgment,  as  in  case  of  felony  to  save  the  wife's  dower;  but  a  saving  will  not 
serve  against  the  express  judgment,  for  that  should  be  repugnant,  as  saving 
the  life  of  the  ofiender  should  be  void. — [Note  2G9.] 


L.  3.  C,  9.8.539-40.  Of  Confirmation.  [305.b.306.a.&b. 


Sect.  539. 

J)  UT  if  the  lord  will  by  Ms  deed  of  confirmation,  that  the 

t306."|  tenant  in  this  case  shall  yeeld  J|@^  to  him  a  hawke  or  a 

a-     J  rose  yearly  at  sn^h  a  feast,  ^c.  this  confirmation  is  void  (cest 
*  confirmation  est  voide),  because  hee  reserveth  to  him  a  new 
thing  which  was  not  parcell  of  his  services  before  the  confirmation  :  and 
so  the  lord  may  well  by  such  confirmation  abridge  the  services  f  by  which 
the  tenant  holdeth  of  him,  but  hee  cannot  reserve  to  him  neiv  services. 

THIS  upon  that  which  hath  beene  said  before  in   the  next 
preceding   Section   is    evident,    and    needeth    no    further 
explication. 

Sect.  540. 

A  LSO,  if  tJiere  be  lord,  mesne,  and  teyiant  (si  soit  seignior  %  mesne 
et  tenant),  and  the  tenant  is  an  abbot,  that  holdeth  of  the  mesne  by 
cet'taine  services  yearly,  the  which  hath  no  cause  to  have  acquitance 
against  his  mesne  (le  quel  n'ad  ascun  cause  §  d'aver  acquitance  envers 
son  mesne,) /or  to  bring  a  ivrit  of  mesne,  \\  ^c.  in  this  case,  if  the  mesne 
confirme  the  estate  that  the  abbot  hath  in  the  land,  to  have  and  to  hold 
the  land  unto  him  and  his  successors  in  frankalmoigne,  or  free  ahnes, 
S^c.  in  this  case  this  confirmation  is  good,  and  then  the  abbot  holdeth  of 
the  mesne  in  frankalmoigne.  And  the  cause  is,  for  that  no  new  service 
is  reserved,  for  all  the  services  specially  specified  bee  extinct,  and  no 
rent  is  reserved  T[  to  the  mesne,  but  the  abbot  shall  hold  the  land  of  him 
as  it  was  before  the  confirmation  (forsque  **  que  I'abbe  tient  de  luy  la 
terre,  et  ceo  fist  ft  il  devant  la  confirmation) ;  for  he  that  holdeth  in 
frankalmoigne  ought  to  doe  no  bodily  service  ;  so  that  (issint  ||  que)  by 
such  confirmation  it  appeareth.,  the  mesne  shall  not  reserve  unto  him  (A) 
710  new  service  (le  mesne  no  reserva  a  luy  ascun  novel  service), 

t306."j  but  that  the  lands  shall  bee  holden  of  him  as  it  luas  before.  And 
b-     J  in  this  J|@=°  case  the  abbot  shall  have  a  writ  of  mesne,  if  hee 
bee  distrained  in  his  defaidt,  by  force  of  the  said  confirmation, 
where  per  case  hee  might  not  have  such  a  writ  before  (lou  per  case  il  ne 
puissoit  aver  ||||  un  briefe  adevant,  ^c.) 

HERE 

*  confirmation — reservacion,  i.  and  ||  d-c.  not  in  L.  and  31.  or  Roh. 

M.  and  Roh.  1  to  the  mesne,  not  in  L.  and  M. 

I  hy  which  the  tenant  holdeth  of  Mm,  or  Roh. 

not  in  L.  and  M.  or  Roh.  **  que  not  in  L.  and  M. 

I  mesne — niesme,  L.  ami  M.  but  not  ft  i^ — ^  I^^j  -^-  «"<^  ^^-  ""^  ^^^■ 

in  Roll.  XX  que  not  in  L.  and.  M.  or  Roh. 

§  per  cas,  added  in  L.  and  M.  and  \\\\  un — tiel,  L.  and  M.  and  Roh. 
Roh. 

(A)  Here  "  no"  seem*  printed  hy  mistake,  instead  of  "  any"  or  "  some."     See  JL:  Ritso's  la'.r. 
p.  110. 


306.  b.]  Of  Confirmation.     L.  3.  C.  9.  Sect.  541. 

4  E.  3.  19.  TTERE  our  author  having  seene  the  former  bookes  putteth  his 

22  E.  3. 15.  b.  ^    X J-  case,  that  the  mesne  maketh  the  confirmation  to  hold  in 
case  *  ^  ^  frankalmoigne,  and  not  the  lord  paramount. 

lOE.  3.  5.    15  E.  3.  Confirmat.  S. 

4  E.  3. 19,  20,  "And  in  this  case  the  abbot  shall  have  a  writ  of  mesne.'* 

H  &  Q        *       Here  is  to  bee  noted,  that  upon  a  confirmation  to  hold  in  freeal- 
4  E.  4.  35.  moigne  there  Ijeth  a  writ  of  mesne,  albeit  the  cause  of  acquittal 

31  E.  1.  Mesne,  beginne  after  the  seignior.     And  so  upon  such  a  confirmation 
Avowrie  100  tenant  shall  have,  contra  formam  feoff amenti. 

22  E.  3.  18.  b*.    30  E.  3.  13.     16  H.  3.  Avowrie,  243.     (9  Rep.  130.) 


Sect.  541. 

ALSO,  if  I  he  seised  of  a  villeine  as  of  a  villeine  in  grosse,  and  an- 
other taketh  him  out  of  my  fossession,  clayming  him  to  bee  his 
villein  f  there  where  hee  hath  no  right  to  have  him  as  his  villeine,  and 
after  I  confirme  to  him  the  estate  which  hee  hath  in  my  villeine,  this 
confirmation  seemeth  to  be  voide,  for  that  none  may  have  possession  of  a 
man  as  of  a  villeine  in  grosse,  but  he  which  hath  right  to  have  him  as 
his  villeine  in  grosse.  And  so  inasmuch  as  hee  to  tvhom  the  confirma- 
tion was  made,  was  not  seised  of  him  as  of  his  villein  at  the  time  of  the 
confirmation  made,  such  confirmation  is  void.  » 

HERE  is  to  be  observed  a  diversitie  betweene  the  custodie  of 
the  body  of  a  ward  within  age,  and  a  right  of  inheritance 
45  E  3  10  ^^  ^^^  body  of  a  villein  in  grosse ;  for  a  man  may  bee  put  out 

30  H.  6.  of  possession  of  the  custodie  of  his  ward,  but  not  of  his  villeine 

tit.  Barre,  59.  Jq  grosse,  no  more  than  a  man  can  bee  of  his  prisoner  which  he 
frrif-tath  taken  in  warre. 

(Post.  323.  a.)  Also  of  things  that  are  in  grant,  as  rents,  commons,  and  the 
Brooke,  tit.  lijfe,  it  is  at  the  election  of  the  party  whether  hee  will  be  dis- 
Propertie,  28.^  seissed  of  them  or  no,  as  shall  bee  said  after  in  his  proper  place  (1). 
591.)'  '  '  33ut  of  a  villeine  in  grosse  he  cannot  at  all  be  disseised,  [a]  A^on 
[a]  Bract,  lib.  2.  valet  confirmatio  nisi  ille  qui  confirmat  sit  in  possessione  rei  vel 

^?'  \:?^  ■^;  ,'  juris  wide  fieri  debet  confirmatio,  &  eodem,  modo  nisi  ille  cut 
tit.  Discont.  16.  •'       /.  .•     /•,      .J   •  • 

42  E.  3.  18.         confirmatio  jit,  sit  in  possessione. 

40  E.  3. 17.    43  E.  3.  4.    9  E.  4.  Dier,  38.     10  Eliz.  Growche's  case. 

And  materially  doth  Littleton  put  his  case  of  a  villeine  in 
grosse ;  for  of  a  villeine  regardant  to  a  mannor,  the  lord  may  be 
put  out  of  possession ;  for  by  putting  him  out  of  possession  of  the 
mannor,  which  is  the  principall,  hee  may  likewise  bee  put  out  of 
possession  of  the  villeine  regardant,  which  is  but  accessory.  And 
by  the  recovery  of  the  mannor  the  villeine  is  recovered.  But  if 
another  doth  take  away  my  villeine  in  grosse  or  regardant,  he 

gaineth 

f  there  where  hee  hath  no  right  to  have  him  as  his  villeine,  not  in  L.  and  M. 
or  Eoh. 


(1)  See  ant.  239.  a.  note  1. 


L.  3.  C.  9.  Sect.  542.     Of  Confirmation     [306.  b.  307.  a. 

gaineth  no  possession  of  him.  And  thi  s  doth  well  appeare  by  the  (Ant.  303.  a.) 
writ  of  nativo  habendo,  for  that  writ  is  not  brought 

[307.1  ^g^^'^'^*'  ^^y  person  in  certaine  (because  no  man  B@* 
a.  J  can  gaine  the  possession  of  him.)  But  the  writ  is  to 
this  effect :  Bex  vie'  salutem.  Frsecipimus  tihi,  quod 
juste  et  sine  dilatione  liahere  facias  A.  B.  nativum  et  fugitivum 
suum,  &c.  ubicunque  inventus fuer it,  &c.  et  prohibemus  super  fo- 
risfacturam  nostram  ne  quis  eum  injusfh  dctineat ;  so  as  to  detaine 
him  one  may,  but  to  possessc  himselfe  of  him,  and  dispossesse 
the  lord,  he  cannot. 

And  if  a  man  might  have  been  dispossessed  of  a  villeine  in 
grosse,  or  of  a  villeine  regardant  (unlesse  he  be  dispossessed  of 
the  mannor  also,  as  hath  beene  said),  the  law  would  have  given 
a  remedie  against  the  wrong  doer,  as  the  law  doth  in  the  case  of 
a  ward. 

Now,  seeing  it  doth  appeare  by  our  bookcs  [a]  (and  by  Lit-  [a]  Bracton, 
tleton  himselfe  by  implication  speaking  only  of  a  villeine  in  grosse)  ^l;  243. 
that  if  a  man  be  disseised  of  the  mannor  whereunto  the  villeine  /5"Rep^n,  \^[ 
is  regardant,  he  is  out  of  possession  of  his  villeine,  and  so  an  Ant.  77.  a. 
advowson  appendant  and  the  like.     Hereby  (iy/«^eto7i  putting  121.  b.) 
his  case  of  a  villeine  in  grosse)  and  by  divers  authorities  a  point 
controverted  in  our  bookes[*]  is  resolved,  viz.  that  by  the  grant  [s]  g  e.  4.  3S. 
of  the  mannor,  without  saying  cum  pertinentiis,  the  villeine  re-  3  II.  4.  15. 
gardant,  advowson  appendant,  and  the  like,  doe  passe  :  for  if  the  |^  ^"  ^-  ^^' 
disseisor  shall  gaine   them  as  incidents  to   the  mannor,  whose  imp.  lie. 
estate  is  wrongfull,  d  inultb  fortiori  the  feoffee,  who  commethto  19  R.  2. 
his  estate  by  lawfuU  conveyance,  shall  have  them  as  incidents.  ?q''^P'«^o^,' 
But  where  the  entrie  of  the  disseisee  is  lawfull,  he  may  seise  the  21  h.  6.  9." 
villeine  regardant,  or  present  to  the  advowson,  &c.  before  he  33  II.  6.  33. 
enter  into  the  mannor :  otherwise  it  is  where  his  entrie  is  not  ^^{?'J'\^^' 
lawfull;  and  so  are  the  ancient  authors  \jS\  to  be  intended  (1).      ^  ^\  ^  33  9 

22  H.  6.  33.  per  Moyle.  30  E.  3.  31.  39  E.  3.  21.  43  E.  3.  12.  (Plowd.  258.  a. 
Ant.  122.  b.  Post.  349.  b.  363,  b.)  [6]  Bracton,  fol.  242,  243.  Britton,  fol. 
126.     Fleta,  ace. 


Sect.  542. 

J)  UT  in  this  case,  if  these  words  were  in  the  deed,  *  Jj-c.     Sciatis  me 
dedisse  et  concessissef  tali,  &c.  talem  villanum  meum,  this  is  good  ; 
hut  this  shall  enure  hy  force  and  way  of  grant,  and  not  by  way  of  con- 
firmatio7i,  ^c. 

HERE  it  is  to  be  observed,  that  a  man  hath  an  inheritance  in  2  H.  6. 
a  villeine,  whereof  the  wife  of  the  lord  shall  be  endowed,  as  '^' 

hath  beene  said;  for  in  him  a  man  may  have  an  estate  in  fee  or 
fee  taile  for  life  or  yeeres.     And  therefore  Littleton  is  here  to  be  24  E.  3. 
understood,  that  in  the  grant  there  were  these  words  {his  heires)  Discont.  16. 
or  else  nothing  passed  but  for  life,  as  of  other  things  that  lie  in 
grant. 

Sect. 

tfcc.  not  in  L.  and  M.  or  Roh,  f  tali  not  in  L.  and  M.  or  Roh. 

(1)  See  the  Chapter  on  Villenage. 


307.  a.  &b.l  Of  Confirmation.  L.  3.C.9.  S.  5^1:3-44-45-46. 


Sect.  543. 

J  iVi)  sometimes  (Et  %  ascun  foits)  these  verhes  dedi  et  concessi  shall 

enure  by  way  of  extinguishment  of  the  thing  given  or  granted  ;  as 

if  a  tenant  hold  of  his  lord  by  certaine  rent,  and  the  lord  grant  by  his 

deed  to   the  tenant  and  his  heires  the  rent,  cfc.  this  shall  enure  to  the 

tenant  by  ivay  of  extinguishment,  for  by  this  grant  the  rent  is  extinct,  ^c. 

3  E.  3. 12.  And  this  errant  of  the  rent  shall  enure  by  way  of  release. 

&  3  Ass.  7.  ^  J         J 


(2  Roll.  405.) 


^  Sect.  544.  [^b.'^-] 


JN  the  same  manner  it  is  where  one  hath  a  rent  charge  out  of  certaine 
land  (En  mesme  le  manner  est  lou  *  un  ad  un  rent  charge  hors  de 
certaine  terre),  and  hee grant  to  the  tenant  of  the  land  the  rent  charge,  S^c. 
And  the  reason  is,  for  that  it  appeareth,  by  the  loords  of  the  grant,  that 
the  tvill  of  the  donor  is,  that  the  tenant  shall  have  the  rent,  Sfc.  And 
inasmuch  as  hee  cannot  have  or  perceive  any  rent  out  of  his  owne  land, 
therefore  the  deed  shall  be  intended  and  taken  for  the  most  advantage 
and  availe  for  the  tenant  that  it  may  be  taken,  and  this  is  by  way  of 
extinguishment. 

34  H.  6.  fol.  41.    T)UT  if  the  grantee  of  the  rent-charge  granteth  it  to  the  tenant 
(Ante,  280.  a.)      Jj  ^f  ^\^q  landi  and  a  stranger,  it  shall  be  extinguished  but  for 
the  moietie  :  and  so  it  is  of  a  seigniorie. 


Sect.  545. 

A  LSO,  if  I  let  land  to  a  man  for  terme  of  yeares,  and  after  I  eon- 
firme  his  estate  without  putting  more  words  in  the  deed,  by  this  he 
hath  no  greater  estate  than  for  terme  of  yeares,  as  hee  had  before. 

Sect.  546. 

7?  UT  if  I  release  to  him  all  my  right  ivhich  I  have  in  the  land  without 
putting  more  words  in  the  deed  (sans  plus  f  parols  mitter  en  le  fait,) 
he  hath  an  estate  of  freehold  (1).  §  So  thou  maist  understand  {my  sonne) 
divers  great  diversities  between  releases  and  confirmations. 

+  Et — item,  L.  and  M.  and  Roh.         f  parols  not  in  L.  and  31.  or  Boh. 
*  un— 7-horae,  L.  and  M.  and  Roh.        §  And  added  in  L.  and  M.  and  Roh. 

(1)  To  give  a  confirmation  this  eflfect,  in  the  case  of  a  lease  at  common  law, 

the 


L.  3.  C.  9.  S.  547,  548.  Of  Confirmation.  [307.  b.  308.  a. 

IN  these  two  Sections  it  is  the  seventh  case  wherein  a  release 
and  confirmation  doe  differ. 


"308 


a    ]  8^  Sect.  547. 


(Ant.  296.) 


ALSO,  if  I  being  within  age  let  land  to  another  for  termeof  xx.  yeares^ 
and  after  he  granteth  the  land  tc  another  for  term  of  x.  gears,  so 
hee  granteth  butparcell  of  his  terme :  in  this  case  tvhen  I  am  of  full  age, 
if  I  release  to  the  grantee  of  my  lessee,  ^c.  this  release  is  void,  because 
there  is  no  privitie  betweene  him  and  me,  <f  c.  But  if  I confirme  his  estate, 
then  this  confirmation  is  good.  But  if  my  lessee  grant  all  his  estate  to 
another,  then  my  release  made  to  the  grantee  is  good  and  effectuall  (1). 

HERE  are  two  things  to  be  observed :  First,  that  the  lease  of  7  E.  4.  6.  b. 
an  enfant  in  this  case  is  not  void  but  voidable.     Secondly,  18  E.  4.  2. 
this  is  the  eighth  case  put  by  Littleton  wherein  the  release  and  .^j.^  ^^^  320 
confirmation  doe  differ.  Sid.  42.  1  Roll. 

729,  730.) 


Sect.  548.  IS  I?;-' 

A  LSO,  if  a  man  grant  a  rent-charge  issuing  out  of  his  land  to  another 
for  terme  of  his  life,  and  after  hee  confirmeth  his  estate  in  the  said 
rent,  to  have  and  to  hold  to  him  in  fee  taile  or  in  fee  simple;  this  con- 
firmation is  void  as  to  inlarge  his  estate,  because  hee  that  confirmeth  hath 
not  any  reversion  in  the  rent. 

HERE  the   diversitie   is    apparent   betweene  a  rent  newly  (2  Roll.  415.) 
created  and  a  rent  in  esse ;   which  needeth  no  explication.  ^^  ^-  •]■  ^•, 
Only  this  is  to  be  observed,  that  Littleton  intendeth  his  deed  of  pi  (f,,^  35 " 

8  H.  4.  19.     (Ant.  148.  a.     Post.  317.  a.) 

confirmation 


tha  lessee  must  have  previously  made  an  actual  entry.  But  no  entry  is  neces- 
sary for  the  purpose,  if  the  lease  is  a  bargain  and  sale  under  the  statute. — 
[Note  270.] 

(1)  So  Crusoe  d.  Blencowe  v.  Bugby,  3d  Wilson,  2-84.  Henry  Blencowe 
and  Mary  his  wife,  seised  in  fee,  demised  to  William  Alder  for  21  years,  with 
a  proviso  for  re-entry  on  default  of  payment  of  the  rent,  or  breach  of  any  of 
the  covenants.  Among  other  covenants,  there  was  one  from  William  Alder, — 
"  that  he  should  not  assign,  transfer,  or  set  over,  or  otherwise  do  or  ])iit  away 
''  the  indenture  of  demise,  or  the  premises  thereby  demised,  or  any  part  thereof, 
"  to  any  person  or  persons  whomsoever,  without  the  consent  of  the  said  Henry 
"  Blencowe  and  Mary  his  wife,  their  heirs  and  assigns,  in  writing,  under  his, 
"  her,  or  their  hands  and  seals,  first  had  and  obtained  for  doing  thereof" — 
William  Alder,  without  any  licence,  demised  to  John  Bugby  for  14  years. — 
It  was  held,  that  there  was  no  jn-iv if j/  of  contract  between  the  original  lessor 
and  Bugby,  the  under-lessee.  So  that  it  was  an  under-lease,  and  not  an  as- 
signment ;  and  therefore  no  breach  of  the  covenant.  And  see  1  Strange,  405. 
See  also  Gregson  v.  Harrison,  2  Term  Rep.  p.  425.  Kinnersley  f.  Orpe  and 
others,  Dougl.  56. — [Note  271.] 


308.  a.  308.  b.]  Of  Confirmation.  L.  3.  C.  9.  S.  549,  550. 

coufirmation  not  to  containe  any  clause  of  distresse ;  for  other- 
wise, as  to  the  confirmation  the  deed  is  void,  but  the  ckuse  of 
distresse  doth  amount  to  a  new  grant,  as  in  the  Chapter  of  Rents 
hath  beene  said. 


(Post.  366.  a.  QppJ.      ^^Q 

Pinch,  234.)  OCUl.     tr±V. 

^  UT  if  a  man  he  seised  in  fee  of  rent  service  or  rent  charge, 

lO"  and  he  grant  therent  to  another  for  life,  and  the  tenant  r308."j 
attorneth,  and  after  hee  confirmeth  the  estate  of  the  grantee  in  L    b.     J 
fee  taile,  or  in  fee  simple,  this  confirmation  is  good,  as  to  enlarge 
his  estate  according  to  the  words  of  the  confirmation,  for  that  he  which 
confirmed  *  at  the  time  of  confirmation  had  a  reversion  of  the  rent. 

HERE  is  the  eighth  case  wherein  the  release  and  confirma- 
tion doth  agree :  and  it  is  here  to  be  observed,  that  to  the 
grant  of  the  estate  for  life,  Littleton  doth  put  an  attornement, 
because  it  is  requisite ;  but  to  the  confirmation  to  the  grantee  of 
the  rent  to  enlarge  his  estate,  there  is  none  necessary,  and  there- 
fore he  putteth  none  :  but  of  this  more  shall  be  said  in  the 
Chapter  of  Attornement,  Sect.  556,  557. 


Sect.  550. 

J)  UTin  the  case  aforesaid  where  a  man  grants  a  rent  charge  to  another 
for  terme  of  life,  if  he  will  that  the  grantee  should  have  an  estate  in 
taile,  or  in  fee,  it  hehoveth  that  the  deed  of  grajit  of  the  rent  charge  for 
terme  of  life  he  surrendred  or  cancelled,  and  then  to  make  a  new  deed  of 
the  like  rent  charge,  to  have  and  perceive  to  the  grantee  in  tayle  or  in  fee, 
^c.     Ex  paucis  t  plurima  concipit  ingenium. 

Vid.  Sect.  636.     "O  URRENDRED  or  cancelled  (1)."     Note  by  cancellation 

^a^'^'tiV'  ^^^'  ^^  *^^  "^^^^  *^^  ^^^^  which  lieth  only  in  grant  ceaseth  (as 

225.' b.   '    *         ^^^'^  ^*  appeareth)  as  well  as  by  the  surrender.     And  the  reason 

10  Rep.  66.  wherefore  (if  the  grantor  make  a  new  grant  of  the  rent,  and  not 

Plowd.^237.  a.      enlarge  it  by  way  of  confirmation,  as  Littleton  must  be  intended) 

1  Ve'nt"'2'97 )       ^^^  deed  should  be  surrendred  or  cancelled,  is  lest  the  grantor 

should  be  doubly  charged,  viz.  with  the  old  grant  for  life,  and 

with  the  new  grant  in  fee;  or,  as  hath  beene  said,  the  grantor 

may  grant  to  the  grantee  for  life  and  his  heires,  that  he  and  his 

heires  shall  distreine  for  the  rent,  &c.  and  this  shall  amount  to 

a  new  grant,  and  yet  amount  to  no  double  charge,  whereof  you 

may  see  before  in  the  Chapter  of  Rents. 

Chap. 


*  the  estate  added  in  L.  and  M.  f  plurima  concipit  ingenium — dictis, 

&c.  L.  and  31. 


(1)  See  ant.  225.  b.  note  1. 


L.  3.  C.  10.  Sect.  551.        Of  Attomement.  [309.  a. 


r.'-] 


B^- Chap.  10.      Of  Attornement.         Sect.  551. 


J^TT0RNE3IENT  is,  as  if  there  bee  lord  and  tenant,  and  the 
lord  will  grant  by  his  deed  the  services  of  his  tenant  to  another  for 
terme  of  yeares,  or  for  terme  of  life,  or  in  taile,  or  in  fee,  the  tenant 
must  attorne  to  the  grantee  in  the  life  of  the  grantor,  by  force  and  vertue 
of  the  grant,  or  otherwise  the  grant  is  void.  And  attornement  is  no 
other  in  effect,  but  lohen  the  tenant  hath  heard  of  the  grant  made  by  his 
lord,  that  the  same  tenant  do  agree  by  tvord  to  the  said  grant,  as  to  say 
to  the  grantee,  I  agree  to  the  grant  made  to  you,*  ^c.  or  1  am'\  well 
content  with  the  grant  made  to  you;  but  the  most  comynon  attornment 
is,  to  say,  |  Sir,  I  attorne  to  you  by  force  of  the  said  grant,  or  I  become 
your  tenant,  S^c.  or  to  deliver  to  the  grantee  (ou  ||  liverer  al  grantee)  a 
pennie,  or  a  halfe-pennie,  or  a  farthing,  by  way  of  attornement. 

"  J  TTORNEMEXT'  is  an  agreement  of  the  tenant  to  the  Bracton,  lib.  2. 
grant  of  the  seigniorie,  or  of  a  rent,  or  of  the  donee  in  tayle,  g^jf^^f  |05  b 
or  tenant  for  life  or  yeeres,  to  a  grant  of  a  reversion  or  remainder  176.  et  177." 
made  to  another.     It  is  an  ancient  word  of  art,  and  in  the  com-  Fleta,  lib.  3. 
mon  law  signifieth  a  torning  or  attorning  from  one  to  another.  ?f^T^^,'i   av 
Wee  use  also  attornatnenhim  as  a  Latine  word,  and  attornare  to  29.3.) 
attorne.     And  so  Bracton  [a]  useth  it  :  Item  videndum  est  si  do-  (l  Rep.  68.) 
minus  attornare possit  allcui  homagium  et  servitium  tenentis  sui  f^^"^^'        ^' 
contra  voluntatem  ipsius  tenentis,  et  videtur  quod  non.  Fleta.'    Brit- 

ton,  ubi  supra. 

And  the  reason  why  an  attornment  is  requisite,  is  yeelded  in  old 

bookes  to  be.  Si  doniinus attornare  jyosslt  servitium  tenentis  contra  Bracton,  lib.  2. 

voluntatem  tenentis,  talc  sequcretur  inconveniens,  quod  possit  eum  ^'^-  ^^-  ^• 

7-  .,.:..     ^  ,  \^         -f  Britton  ubi 

subjugare  capitali  tmmico  sua,  etjjcr  quod  teneretur  sacramcntum  gypra, 

fidelitatis  facere  ei  que  eum  damnijicare  intenderet  (1). 

"  The 

*  &c.  not  in  L.  and  M.  or  Roh.  ||  liverer — deliverer,  L.  and  M.  and 

■f  icell  not  in  L.  and  M.  or  Roh.  Roh. 

\  &c.  added  in  L.  and  M.  and  Roh. 


(1)  Sir  Martin  "Wright  and  many  other  writers  have  laid  it  down  as  a  general 
rule,  that  by  the  old  feudal  law  the  feudatory  could  not  alien  the  feud  without 
the  consent  of  the  lord;  nor  the  lord  alien  or  transfer  his  seigniory  without 
the  consent  of  his  feudatory;  for  the  obligations  of  the  lord  and  his  feudatory 
being  reciprocal,  the  feudatory  was  as  much  interested  in  the  conduct  and 
ability  of  the  lord,  as  the  lord  in  the  conduct  and  ability  of  his  feudatory;  and 
that  as  the  lord  could  not  alien,  so  neither  could  he  exchange,  mortgage,  or 
otherwise  dispose  of  his  seigniory,  without  the  consent  of  his  vassel.  See  Sir 
Martin  Wright's  Introduction  to  the  Law  of  Tenures,  30,  31. — It  is  certain 

that 


case. 


309.  a.J  Of  Attornement.       L.  3.  C.  10.  Sect  551. 

Vid.  Litt.  "  The  tenant  must  attorne  to  the  grantee  in  the  life  of  the  grantor, 

n  H^--  19  '^'^•"     ^^^  '""^  must  he  also  in  the  life  of  the  grantee )  and  this  is 

Lib.  1.  fol.  104.  understood  of  a  grant  by  deed.  And  the  reason  hereof  is,  for  that 
105.  Shelley's  every  grant  must  take  effect  as  to  the  substance  thereof  in  the  life 
both  of  the  grantor  and  the  grantee.  And  in  this  case  if  the 
grantor  dieth  before  attornement,  the  seigniorie,  rent,  reversion, 
40  Ass.  19.  or  remainder  descend  to  his  heire;  and  therefore  after  his  decease 

20  H  6  7  *^^  attornement  cometh  too  late :  so  likewise  if  the  grantee 

(Doc.  and  Stud.  86.  a.)     (9  Rep.  84.     Sect.  564.) 

dieth 


that  this  doctrine  formerly  prevailed  in  England.  But,  in  general,  it  does  not 
appear  to  have  prevailed  (at  least  in  an  equal  extent)  in  other  countries.  It 
seems  there  to  have  been  admitted,  that  the  lord  might  transfer  the  whole  fee, 
without  the  consent  of  the  vassel,  and  that  the  vassel  immediately,  by  such  a 
transfer,  became  the  tenant  of  the  new  lord. — It  seems  also  to  have  been  ad- 
mitted, that  the  lord  might  transfer  to  another  the  beneficial  fruits  of  the  tenure, 
without  the  consent  of  the  vassal.  But  is  was  a  great  question  whether  the 
lord  could  transfer  his  vassal  to  another,  without  the  vassal's  consent,  unless 
by  transferring  the  u-hole  fee. — See  Basnage  Commentaire  de  la  Coiitunie  de 
Norniandie,  de>>  Fiefs  et  Droits  fecdaux,  art.  204. — This  necessity,  which 
subsisted  in  our  old  law,  that  the  tenant  should  consent  to  the  aliena- 
tion of  the  lord,  gave  rise  to  the  doctrine  of  attornment. — At  the  common 
law,  attornment  signified  only  the  consent  of  the  tenant  to  the  grant  of  the 
seigniory;  or,  in  other  words,  his  consent  to  become  the  tenant  of  the  new 
lord. — The  necessity  of  attornment  was,  in  some  measure,  avoided  by  the 
statute  of  uses;  as  by  that  statute  the  possession  was  immediately  executed 
to  the  use; — and  by  the  statute  of  wills,  by  which  the  legal  estate  is  imme- 
diately vested  in  the  devisee. — Yet  attornment  continued  after  this  to  be 
necessary  in  many  cases.  But  both  the  necessity  and  efficacy  of  attorn- 
ments have  been  almost  totally  taken  away  by  the  statutes  of  4  Ann.  c.  16. 
and  II  Geo.  2.  c.  19.  By  the  former  of  these  statutes,  sect.  9.  it  was 
enacted,  "That  all  grants  and  conveyances  of  any  manors,  or  rents,  or  of  the 
reversion  or  remainder  of  any  messuages  or  lands,  should  be  good  without 
attornments  of  the  tenants;  provided  that  no  such  tenant  should  be  damaged 
by  payment  of  rent  to  any  such  grantor  or  conusor,  or  by  breach  of  any  con- 
dition for  non-payment  of  rent  before  notice  given  him  of  such  grant  by  the 
conusee  or  grantee."  By  the  latter  statute  it  was  enacted,  "That  the  attorn- 
ments of  tenants  to  strangers  claiming  title  to  the  estate  of  their  landlords, 
should  be  absolutely  null  and  void  to  all  intents  and  purposes  whatsoever,  and 
that  the  possession  of  their  respective  landlord  or  landlords,  lessor  or  lessors, 
should  not  be  deemed  or  construed  to  be  any  wise  changed,  altered,  or  affected, 
by  any  such  attornment  or  attornments;  provided  that  nothing  therein  con- 
tained should  extend  to  vacate  or  affect  any  attornment  made  pursuant  to,  and 
in  consequence  of,  some  judgment  at  law,  or  decree,  or  order  of  a  court  of 
equity,  or  made  with  the  privity  and  consent  of  the  landlord  or  landlords, 
lessor  or  lessors,  or  to  any  mortgage,  after  the  mortgage  is  become  forfeited." 
— Till  the  passing  of  these  statutes,  the  doctrine  of  attornment  was  one  of  the 
most  copious  and  obstruse  points  of  the  law.  But  these  statutes  having  made 
attornment  both  unnecessary  and  inoperative,  the  learning  upon  it  is  so  useless, 
that  Mr.  Viner  has  inserted  nothing  respecting  it  in  his  voluminous  compilation 
but  an  extract  from  lord  chief  baron  Gilbert. — Mr.  Bacon  has  not  the  article 
Attornment  in  his  work;  and  the  learning  and  industry  of  lord  chief  baron 
Corayn  have  furnished  him  with  little  material  upon  it,  that  is  not  to  be  found 
either  in  Littleton  or  Sir  Edward  Coke. — [Note  272.] 


L.  3.  C.  10.  Sect.  551.    Of  Attornement.  [309.  b. 

dieth  before  attornement,  an  attornement  to  the  heire 

[309. "I  II@"is  void,  for  nothing  descended  to  him  :  and  if  he 
h.     J  should  take,  he  should  take  it  as  a  purchasor,  where 
the  heires  were  added  but  as  words  of  limitation  of 
the  estate,  and  not  to  take  as  purchasers. 

But  if  the  grant  were  by  fine,  then  albeit  the  conusor  or  conu- 
see  dieth,  yet  the  grant  is  good.  For  by  fine  levied  the  state  doth  34  11.  6.  7. 
passe  to  the  conusee  and  his  heires ;  and  the  attornment  to  the 
conusee  or  his  heires  at  any  time  to  make  privitie  to  distraine  is 
sufficient.     But  all  this  is  to  be  taken  as  Littleton  understood  it,  Bracton.  lib.  2. 
viz.  of  such  grants  as  have  their  operation  by  the  common  law.   *'''•  ^^'  ^^-  ^'^''• 
For  since  Littleton  wrote,  if  a  fine  be  levied  of  a  seigniorie,  &c.  to 
another  to  the  use  of  a  third  person  and  his  heires,  he  and  his  I'ib.  6.  fol.  68. 
heires  shall  distraine  without  any  attornment,  because  he  is  in  ^^  JY°7 
by  the  statute  or  27  H.  8.  cap.  10.  by  transierring  oi  the  state 
to  the  use,  and  so  he  is  in  by  act  in  law. 

And  so  it  is,  and  for  the  same  cause,  if  a  man  at  this  day  by 
deed  indented  and  inrolled  according  to  the  statute,  bargaineth  (2  Cro.  193. 
and  selleth  a  seigniorie,  &c.  to  another,  the  seigniorie  shall  passe  J*^^"  ^^i," . 
to  him  without  any  attornement;  and  so  it  is  of  a  rent,  a  rever-  27  11.8.  cap.  16. 
sion,  and  a  remainder.     So  as  the  law  is  much  changed,  and  the  Vide  Sect.  584. 
ancient  privilege  of  tenants,  donees,  and  lessees  much  altered 
concerning  attornement  since  Littleton  wrote. 

But  if  the  conusee  of  a  fine  before  any  attornement  by  deed  (Ant.  104.  b. 
indented  and  inrolled,  bargaineth  and  selleth  the  seigniorie  to  ?*'^*"  ^?!.'.^* 
another  the  bargainee  shall  not  distraine,  because  the  bargainor  Lib.  6.  ubi  sunra. 
could  not  distraine.     Et  sic  de  similihus ;  for  nemo  jyoteat  plus  Vide  Sect.  149. 
juris  ad  alium  transfer  re  qudrti  ijyse  hahet.    Vide  Sect.  149,  where 
upon  a  recovery,  the  recoverer  shall  distraine  and  avow  without 
attornement. 

A  grant  to  the  king,  or  by  the  king  to  another,  is  good  with-  49  E.  3.  4. 
out  attornement  by  his  prerogative.  6 V^i  ^i  ^ 

"  Attornement  is  no  other  in  effect,  d:c."  It  is  to  be  understood  ^^^^\\  '^^*"  ''• 

that  there  be  two  kinde  of  attornements,  viz.  an  attornement  in  gg^j^  ^g^ 

deed  or  expresse,  and  an  attornement  in  law  or  implicite.  Of  at-  1  Rep.  Alton 

tornement  expresse  or  in  deed  Littleton  speaketh  here,  and  of  ^^'ood's  case. 

attornement  in  law  he  speaketh  after  in  this  chapter.     And  to  j  ^im  Rep  301 

both  these  kinds  of  attornements  there  is  an  incident  inseparable,  1  Cro.  4-H. 

that  is  that  the  tenant  hath  notice  of  the  grant;  for  (an  attorne-  Jones,  376.) 

ment  being  an  aerreeraent  or  consent  to  the  grant,  &c.)  he  cannot  r,,'  ',   '  ."^ '        ' 

1  1-111  1  All  lookers  case. 

agree  or  consent  to  that  which  he  knoweth  not.    And  the  usuall  13  eHz.  Dier, 

pleading  is,  to  which  grant  the  tenant  attorned.     And  therefore  302.    Tooker's 

if  a  bayly  of  a  mannor  who  used  to  receive  the  rents  of  the  case,  ubi  supra. 

tenants,  purchase  the  mannor,  and  the  tenants  having  no  notice 

of  the  purchase  continue  the  payment  of  the  rents  to  him,  this  is 

no  attornement.    So  if  the  lord  levie  a  fine  of  the  seigniorie,  and 

by  fine  take  backe  an  estate  in  fee,  the  tenant  eontinueth  the 

payment  of  the  rent  to  the  first  conusor  without   notice  of  the 

fines  this  is  no  attornement.     But  it  is  to  be  knowne,  that  there  Lib.  2.  looker's 

be  two  kinde  of  notices,  viz.  a  notice  in  deed  or  expresse,  whereof  ^'^^'^'  "  '  ^upia. 

Littleton  here  speaketh,  when  he  saith,  that  the  tenant  agreeth 

to  the  grant,  and  a  notice  in  law  or  implied,  whereof  Littleton 

hereafter  speaketh  in  this  chapter. 

"  Of  the  grant  made  hy  his  lord."  Here  is  to  be  scene 
when  the  thing  granted  is  altered,  what  becommeth  of  the  at- 
tornement. 

If 


fa]  18  E.  3.  tit. 
Variance,  63. 
22  E.  3.18. 
Tooker's  case, 
ubi  supra. 
fPost.  314.) 


309.  b.  310.  a.]  Of  Attornement.  L.  3.  C.  10.  Sect.  551. 

If  there  be  lord,  mesne  and  tenant,  and  the  mesne  grant  over 
his  mesnaltie  by  deed,  the  lord  releaseth  to  the  tenant,  whereby 
the  mesnaltie  is  extinct,  and  there  is  a  rent  by  surplusage,  an 
attornement  to  the  grant  of  this  rent  secke  is  good,  although  the 
qualitie  of  that  part  of  the  rent  is  altered  because  it  is  altered  by 
act  in  law. 

If  a  reversion  of  two  acres  be  granted  by  deed,  and  the  lessor 
before  attornement  levie  a  fine  of  one  of  them,  and  the  tenant 
attorne  to  the  grantee  by  deed,  this  is  good  for  the  other  acre. 

[a]  If  the  reversion  be  granted  of  three  acres,  and  the  lessee 
agree  to  the  said  grant  for  one  acre  this  is  good  for  all  three ; 
and  so  it  is  of  an  attornement  in  law,  if  the  reversion  of  three 
acres  be  granted,"  and  the  lessee  surrender  one  of  the  acres  to 
the  grantee,  this  attornement  shall  be  good  for  the  whole  rever- 
sion of  the  three  acres  according  to  the  grant. 

**  The  same  tenant  do  agree."  Hereafter  in  this  chapter  Little' 
ton  doth  teach  what  manner  of  tenant  shall  attorne. 

"  Agree  hy  parol,  &c."  And  so  hee  may,  and  more  safely  by 
his  deed  in  writing. 

"  As  to  say  to  the  grantee,  &c."  Here  is  to  be  scene  to  what 
manner  of  grantees  the  attornement  is  good.  Regularly  the  at- 
tornement must  be  according  to  the  grant  either  expressly  or 
impliedly.     Of  the  first  Littleton  hath  here  spoken. 

(PC?"  Impliedly  as  if  a  reversion  be  granted  to  two  by  rSlO.l 
deed,  and  the  lessee  attorne  to  one  of  them  according  L  *•  J 
to  the  grant,  this  attornement  is  good,  but  not  to  vest 
the  reversion  only  in  him  to  whom  attornement  is  made ;  but  it 
shall  enure  to  both  the  grantees,  for  that  is  according  to  the 
grant,  and  for  that  it  cannot  vest  the  reversion  only  in  him  to 
whom  the  attornement  is  made.  And  so  it  is  if  one  grantee 
dieth,  the  attornement  to  the  survivor  is  good. 

If  the  lord  grant  by  deed  his  seigniorie  to  A.  for  life,  the 
remainder  to  B.  in  fee,  A.  dieth,  and  then  the  tenant  attorne 
to  B.  this  attornement  is  void,  because  it  is  not  according  to  the 
grant ;  for  then  B.  should  have  a  remainder  without  any  par- 
ticular estate. 

If  a  reversion  be  granted  to  a  man  and  a  woman,  they  are  to 
have  moities  in  law ;  but  if  they  entermarrie  and  then  attorne- 
ment is  had  they  shall  have  no  moities  (and  yet  by  the  pur- 
port of  the  grant,  they  are  to  have  moities),  because  it  is  by  act 
in  law. 

If  a  feme  grant  a  reversion  to  a  man  in  fee,  and  marry  with 
the  grantee,  the  lessee  attorne  to  the  husband,  this  is  a  good  at- 
tornement in  law  to  the  husband. 

If  a  reversion  be  granted  by  deed  to  the  use  of  /.  S.  and  the 
lessee  hearing  the  deed  read,  or  having  notice  of  the  contents 
thereof  attorne  to  cesty  que  use,  this  is  an  implied  attornement 
to  the  grantee. 

If  a  reversion  be  granted  for  life,  the  remainder  in  taile,  the 
remainder  in   fee,  the  attornement  to  the  grantee  for  life  shall 
enure  to  them  in  the  remainder,  to  vest  the  remainder  in  him. 
63.     5  Rep.   Ford's  case.  1  Roll.  Abr.  412.  3  Leo.  17.     4  Leo.  23.) 

And  in  those  cases  if  the  tenant  should  say,  that  I  doe  attorne 
to  the  grantee  for  life,  but  that  it  shall  not  benefit  any  of  them  in 

remainder 


39  H.  6.  3. 

Tooker's  case, 
ubi  supra. 


(Post.  313.  a. 
Ant.  52.  a. 
297.  b.  296.  a.) 


Tooker's  case, 
ubi  supra. 
11  H.  7.  12. 


20  H.  6.  7. 
(Ant.  298.  a.) 


Tooker's  ease, 
ubi  supra.     PI. 
Cora.  187.  483. 
(Ant.  187.  b.) 


2  R.  2.  tit. 
Attornement,  8. 
Lib.  4.  f.  61. 
Hemling's  case. 
(Mo.  91.  con. 
1  Leo.  58.) 


Temps  E.  1. 
Attorn.  22. 
18  E.  4.  7. 
Ant.  212.  b. 
312.  b.    6  Rep. 


L.  3,  C.  10.  Sect.  552.  Of  Attomement.  [310.  a.  310.  b. 

remainder  after  his  death,  yet  the  attornement  is  good  to  them 
all;  for  having  attorned  to  the  tenant  for  life,  the  law  (which  he 
cannot  control!)  doth  vest  all  the  remainder.  And  of  this  more 
shall  be  said  hereafter  in  this  chapter. 

Littleton  here  putteth  five  examples  of  an  expresse  attorne- 
ment, but  of  thera  the  last  is  the  best,  because  the  eare  is  not 
only  a  witness  of  the  words,  but  the  eye  of  the  delivery  of  the 
penny,  &c.  and  so  there  is  dictum  et  factum.  And  any  other 
words  which  import  an  agreement  or  assent  to  the  grant,  doe 
amount  to  an  attornement.  And  albeit  these  five  expresse  at- 
tornemonts  be  all  set  down  by  Littleton,  to  be  made  to  the 
person  of  the  grantee  [/y],  yet  an  attornement  in  the  absence  of  [h]  Lib.  2. 
the  grantee  is  sufficient;  for  if  he  doth  agree  to* the  grant  either  ^^^-  Sf^./'y- 
in  his  presence  or  in  his  absence,  it  is  sufficient.  28  H*^ s*  dt^*^' 

Attornement,  Br.  40.     (10  Rep.  52.    Cro.  Car.  4.10.     1  Roll.  Abr.  300.    Dyer^  298.  a.) 


Sect.  552. 

ALSO,  if  tlie  lord  grant  the  service  of  his  tenant  to  one  man,  and 

after  by  his  deed  bearing  a  later  date  hee  grant  the  same  services  to 

another,  and  the  tenant  attorne  to  the  second  grantee,  notv  the  *  said 

grantee  hath  the  services;  and  albeit  afterwards  the  tenant  tcill  attorne 

to  the  first  grantee,  this  is  clearly  void,  ^c. 

HERE  it  is  to  be  observed,  that  Littleton  expresseth  not  what 
estate  is  granted,  and  very  materially;  for  if  the  former 
grant  were  in  fee,  and  the  latter  grant  were  for  life,  and  the  (Cro.  Car.  2S4. 
tenant  doth  first  attorne  to  the  second  grantee,  he  cannot  after 
attorne  to  the  first  grantee  to  make  the  fee  simple  passe,  for  that 
should  not  be  according  to  the  grant ;  but  in  that  case  the  at- 
tornement to  the  first  is  countermanded.  And  so  it  is  if  a  re- 
version expectant  upon  an  estate  for  life  be  granted  to  another 
in  fee,  and  after  the  grantor  before  attornement  confirme  the 
estate  of  the  lessee  in  taile,  the  attornement  to  the  grantee  for 
the  fee  simple  is  void. 

In  the  same  manner,  if  a  reversion  upon  an  estate  for  yeares 
be  granted  in  fee,  and  the  lessee  confirme  the  estate  of  the  lessee 
for  life,  he  cannot  afterwards  attorne. 

t310.~l     0^  If  a  feme  sole  maketh  a  lease  for  life  or  yeares,  n  ii.  t.  19. 
b.     J  reserving  a  rent,  and  grautcth  the  reversion  in  fee,  and  2  R.  2. 

takcth  husband,  this  is  a  countermand  of  the  attorne-  ""^''"l-"'*- 
ment. 

Where  our  author  putteth  his  case  of  the  whole  reversion,  if 
two  coparceners  bee  of  a  reversion,  and  one  of  them  granteth 
her  moity  by  fine,  the  conusee  shall  have  a  qnul Juris  clamat  for 
the  moitie.  P.  3  E\it. 

Rendloes. 
llending's  case,  ubi  supra.     (1  Roll.  Abr.  299.  ~i 


1  Roll.  Abr.  600. 
Ant.  290.  a.) 


If  in  the  case  that  our  author  here  putteth  of  severall  grantees,  n  h. 
if  the  tenant  attorne  to  both  of  them,  the  attornement  is  void, 
because  it  is  not  according  to  the  grant.  If  a  reversion  be  granted 

for 

*  said — second,  L.  and  M.  and  Rch. 
ToL.  II.— 33 


ao.  b.] 


Of  Attornement.     L.  3.  C.  10.  Sect.  553. 


for  life,  and  after  it  is  granted  to  the  same  grantee  for  yeares, 
and  the  lessee  attorneth  to  both  grants,  it  is  void  for  the  incer- 
taintie;  a  multd  fortiori,  if  the  lord  by  one  deed  grant  his 
seigniorie  to  /.  bishop  of  London  and  to  his  heires,  and  by  an- 
other deed  to  1.  bishop  of  London  and  tolas  successors,  and  the 
(Ant.  190.  a.  tenant  attorne  to  both  grants,  the  attornement  is  void  ;  for  albeit 
Mo.  84.)  the  grantee  be  but  one,  yet   he   hath  severall  capacities,  and 

the  grants  are  severall,  and  the  attornement  is  not  according  to 
either  of  the  grants. 

But  if  A.  grant  the  reversion  of  Blach-Arre  or  White-Acre, 
and  the  lessee  attorne  to  the  grant,  and  after  the  grantee  maketh 
his  election,  this  attornement  is  good ;  for  albeit  the  state  was 
iucertaine,  yet  Ife  attorned,  to  the  grant  in  such  sort  as  it  was 
made ;  and  so  note  a  diversity  between  one  grant  and  severall 
grants,  and  observe  in  this  case  an  attornement  good  in  expecta- 
tion, and  yet  nothing  passed  at  the  time  of  the  attornement  but 
by  the  election  subsequent. 


Sect.  553. 

ALSO,  if  a  man  he  seised  of  a  mannor,  tvhicli  mannor  is  imrcell  in 
demesne,  and  pareell  in  service,  if  he  will  alien  this  mannor  to 
another,  it  hehooveth  that  by  the  force  of  the  alieyiation,  all  the  tenants 
which  hold  of  the  alienor  as  of  his  mannor''  doe  attorne  to  the^alienee, 
or  otherivise  the  services  reniaine  continuaXly  in  the  alienor,  saving  the 
tenants  at  ivill  f;  for  it  needeth  not  that  tenants  at  will  doe  attorne  upon 
such  alienation,  (j-c.  (car  il  ne  besoigne  que  tenants  a  volunt  atturnent 
sur  tiel  alienation,  kc-X) 

Temps  E.  2.  TTERE  it  is  to  bee  observed,  that  when  a  man  maketh  a 
48  e'^'s^'To"  feoffment  of  a  mannor,  the  services  doe  not  passe,  but  re- 

(Sid.  310.312.  maine  in  the  feoffor  untill  the  freeholders  doe  attorne ;  and  when 
■^'>'^-  they  doe  attorne,  the  attornement  shall  have   relation  to  some 

Post  Ml  a*  purpose,  and  not  to  other.  For  albeit  the  attornement  bee  made 
3  Rep.  29.  *  many  yeares  after  the  feoffment,  yet  it  shall  have  relation  to 
1  Leo.  208.)  make  it  pass  out  of  the  feoffor  ah  initio  even  by  the  liverie  upon 
the  feoffment,  but  not  to  charge  the  tenants  with  any  meane 
arrerages,  or  for  waste  in  the  meane  time,  or  the  like. 
(2  Roll.Abr.  If  a  reversion  of  laud  be  granted  to  an  alien  by  deed,  and 

48^'  b^4S^^'**  before  attornement  the  alien  is  made  denizen,  and  then  the  at- 
Ant.  270.  b.  tornement  is  made,  the  king  upon  office  found,  shall  have  the 
279.  b.)_  laud  :  for  as  to  the  estate  betwcene  the  parties,  it  passeth  by  the 

deed  ah  initio  (1). 


Pasch.  5  E.  3 
coram  rege 
Sussex  in  Thesaur. 


If 


*  &c.  added  in  L.  and  M.  and  Roh.  passont   al   aliene    per   force   de   tiel 

f  (he.  added  in  L.  and  M.  and  Iloh.  alienation,  added   in  L.  and  M.  and 

X  pur  ceo  que  mesmes  lee  terrcs  et  Roh.  and  in  MSS. 
tenements  que  ils  teignont   a  volunte 

(1)  Here  the  fee  is  supposed  to  vest  immediately  in  the  grantee;  but  when 
«in  estate  is  granted  upon  a   condition  precedent,  the  estate  does   not  vest, 

even 


L.  3.  C.  10.  Sect.  55^.    Of  Attoinement.    [310.  b.  311.  a. 

If  a  man  plead  a  feoffment  of  a  manner,  he  need  not  plead 
an  attornement  of  the  tenants ;  but  (if  it  be  material!)  it  must 
be  denied  or  pleaded  of  the  other  side. 

And  upon  consideration  had  of  all  the  bookes  touching  this  21  E.  3. 47. 
point,  whether  the  services  of  the  freeholders  do  passe  wherein  34  E.  3.  Doubk 
there  have  been  three  severall  opinions,  viz.  some  have  holden  ^'^*'^'  ^^'   „ 
that  the  services  doe  passe  in  the  right  by  the  livery  as  parcell  43  Ass!  p'.  20. 
of  the  mannor,  but  not  to  avow  without  attornement,  as  in  the  30  E.  3. 
case  of  the  fine.     And  others  have  holden,  that  they  both  passe  ^^  J;-  ^* 
in  riglitand  in  possession  to  distreine  without  attornement.  And  quaServitia  21. 
the  third  opinion  is,  that  in  this  case  the  said  services  passe  8  H.  4.  1.  b. 
neither  in  possession  nor  in  right,  but  untill  attorne-  J^  |J-  ^- 

[311.  ~j  ment  B@°"  remaine  continually  in  tlfe  alienor,  as  Lit-  35  y"  g' 
a.     J  tieton  here  holdeth.     And  so  it  was  resolved  Pasch.  9  E.  4.  33. 

15  Eliz.  betweene  Branbitch  and  Baricrll,  according  ^3  H.  7. 14.  a. 
to  the  opinion  of  our  author.     And   I  never  yet  knew  any  of  4  e'c' Attorne- 
Llttlcton's  cases  (albeit  I  have  knowne  many  of  them)  to  be  ment,  Br.  30. 
brought  in  question,  but  in  the  end  the  iudges  concurred  with  Vid.  iiiii. 

^„^  f.wU^^  14  Eliz.  Rot.  508. 

our  author.  .    „  . 

in  Coinmuni    . 
Banco. 

And  where  our  author  speaketh  of  the  attornement  of  the  9  E.  2.  tit.  At- 

freeholders,  if  the  lord  make  a  lease  for  yeares  or  for  life  of  a  tornemont.is.b. 

mannor,  and  the  freeholders  attorne  to  the  lessee,  if  after  the  ^i  e  3  47      '^ 

reversion  of  the   mannor  be   granted,  the  attornement  of  the  5  n.  5.  I2."b. 

lessee  for  yeares  or  life  shall  binde  the  freeholders  :  for  by  their  Vid.  Lit.  Sect. 

former  attornement  they  have   put  the  attornement  into  the  ^'^^  ^  ^^^' 
mouth  of  the  lessee. 

"  Saving  the  tenants  at  will,  &c."  Here  is  implied  tenant  at 
will  or  by  copie  of  court  roll  according  to  the  custom  of  the 
mannor,  so  as  the  freehold  and  inheritance  both  of  lands  in  the 
hands  of  tenant  at  will  by  the  common  law  or  by  custome  shall 
passe  both  in  right  and  in  possession  without  any  attornement  (1). 


Sect.  554. 

A  LSO,  if  there  bee  lord  and  tenant,  and  the  tenant  letteth  the  land  to 
another  for  term  of  life,  or  giveth  the  land  in  taile  saving  the  rever- 
sion to  himself e,  ^c.  if  the  lord  in  such  case  grant  his  seigniory  to  an- 
other, it  hehoveth  that  hee  in  the  reversion  attorne  to  the  grantee,  and 
not  the  tenant  for  terme  of  life,  or  the  tenant  in  taile,  because  that  in 
this  case  he  in  the  reversion  is  tenant  to  the  lord,  and  not  the  tenant  for 
terme  of  life,  nor  the  tenant  in  taile. 

FOR 


even  by  way  of  relation,  till  the  performance  of  the  condition.     PI.  482.  b.— « 
[Note  273.] 

(1)  For  the  difference  between  seisin  and  attornment,  See  Brediman's  case, 
6  liep.  5G.  b. 


311.  a.  311.  b.]   Of  Attornement.   L.  3.  C.  10.  S.  555-56, 

(8  Rep.  42.)  TT^l^  ^'  ^^  ^  maxime  in  law,  that  no  man  shall  attorne  to  any 

J-  grant  of  any  seigniorie,  rent  service,  reversion  or  remainder, 
but  he  that  is  immediately  privie  to  the  grantor;  and  because 
in  this  case  there  is  no  privitie  betweene  the  lord  and  the  tenant 
for  life,  or  donee  in  taile,  but  only  betweene  the  lord  and  him 
in  the  reversion ;  for  in  this  case  the  attornement  of  him  in  the 
reversion  only  is  good. 

"  Saving  the  reversion  to  Jiimscl/e,  dr."  That  is  to  say,  with- 
out limitation  of  any  remainder  over;  and  this  is  but  to  make 
his  opinion  plaine  as  to  the  point  that  he  putteth  it. 


Sect.  555. 

TNthe  same  manner  is  it  cohere  there  are  lord,  mesne  and  tenant,  *  if 
the  lord  tvill  grant  the  services  of  the  mesne,  albeit  he  maketh  no 
mention  in  his  grant  of  the  mesne,  yet  the  mesne  ought  to  at- 
torne, t  ^'c.  and  not  the  tenant  'peravaile,  ^-c.  ^^^  for  that  the  r  311. "I 
mesne  is  tenant  unto  him,  ^c-  L    ^-     J 

This  standeth  upon  the  same  reason  that  the  next  precedent 
case  did. 


Sect.  556, 

J^UT  other tvise  it  is  ivhere  certainc  land  is  charged  with  a  rent-charge 
or  rent  secke ;  for  in  such  case  if  he  lohich  hath  the  rent-charge 
grant  this  to  another,  it  heliooveth  that  the  tetiant  of  the  freehold  attorn 
to  the  grantee,  for  that  the  freehold  is  charged  with  the  rent,  ^-c.  And 
in  a  rent-charge,  no  avoiorie  ought  to  he  made  upon  any  person  for  the 
distresse  taken,  ^c.  but  hee  shall  avow  the  prisel  to  be  good  and  right- 
full,  as  in  lands  or  tenements  so  charged  with  his  distresse,  cj-c. 

(6  Rep.  59.  a.)  TTERE  is  to  be  observed  a  diversitie  betweene  a  rent  service 
J-J-  and  a  rent  chai-ge,  or  a  rent  secke ;  for  as  to  the  rent  ser- 
vice, no  man  (as  hath  beene  said)  can  attorne,  but  he  that  is 

21  11.  6.  9.  b.  privie ;  so  in  case  of  a  rent  charge,  it  behooveth  that  the  tenant 
of  the  freehold  doth  attorne  to  the  grantee,  without  respect  of 

(^2  Rep.  G7.)  any  privitie.  And  therefore  the  disseisor  onely,  in  the  case  of 
a  grant  of  a  rent  charge,  shall  attorne,  because  he  is  (as  Little- 
ton saith)  tenant  of  the  freehold ;  but  in  case  of  a  grant  of  a 
rent  service,  the  attornement  of  a  disseisee  sufficeth. 

(6  Rep.  39.  a.)  If  there  be  lord  and  tenant  by  homage,  fealtie,  and  rent,  the 
tenant  is  disseised,  the  lord  granteth  the  rent  to  another,  the 
disseisee  attorneth,  this  is  void :  but  if  he  had  granted  over  his 
whole  seigniorie,  the  attornment  had  been  good ;  and  the  reason 

of 

"^if—and,  L.  and  M.  and  Rob.  f  &c.  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  10.  Sect.  556.  Of  Attornement.  [311.  b.  312.  a. 

of  this  diversitie  is  here  given  by  our  author,  for  that  when  the 
rent  was  granted  onely,  it  passed  as  a  rent-secke,  and  conse- 
quently the  disseisor  being  terre-tenant,  must  attorne.  But 
when  the  seigniorie  is  granted,  then  the  disseisee  in  respect  of 
the  privitie  may  attorne. 

"  It  heJioveth  that  the  tenant  of  the  freehold ,  dr."  And  there- 
fore if  the  tenant  of  the  hind  charged  with  a  rent  charge  or 
a  rent  secke  make  a  lease  for  life,  and  he  that  hath  the  rent 
charge  or  rent  secke  grantcth  it  over,  the  tenant  for  life  shall 
attorne,  for  he  is  tenant  of  the  freehold,  according  to  the  ex- 
presse  saying  of  our  author,  and  (as  hath  beene  said)  there 
needeth  no  privitie. 

And  it  was  holden  by  D^er  chiefe  justice  of  the  court  of  com-  (1  Leon.  2C5.  a.) 
mon  pleas,  and  3Ionnson  justice,  in  the  argument  of  Bracebrid;/e's 
case  abovesaid,  and  not  denied,  that  if  he  that  hath  a  rent  charge 
granteth  it  over  for  life,  and  the  tenant  of  the  land  attorne  there- 
unto, and  after  he  granteth  the  reversion  of  the  rent  charge,  that 
the  grantee  for  life  may  attorne  alone;  and  that  these  words  of 
Littleton  are  to  be  understood  when  a  rent  charge  or  rent  secke 
is  granted  in  possession;  and  therewith  agreeth  46  E.  3,  where 
it  appeareth,  that  the  quid  juris  clamat,  in  that  case,  did  lie 
against  the  grantee  for  life. 

A  man  maketh  a  lease  for  life,  and  after  grants  to  A.  a  rent  46  E.  3.  27. 
charge  out  of  the  reversion,  A.  granteth  the  rent  over,  he  in  the  2  H.  6.  9. 
reversion  must  attorne,  and  not  the  tenant  of  the  freehold,  for  ^^'y  ^  j^g^ 
that  the  freehold  is  not  charged  with  the  rent;  for   a  release 
made  to  him  by  the  grantee  doth  not  extinguish  the  rent.    And 
Littleton  is  to  be  understood,  that  the  tenant  of  the  freehold 
must  atturne  when  the  freehold  is  charged. 


p.  li). 

454. 


t 312.1       B@°"  "Aiid  in  a  rent-charge  no  avowrie  ought  to  he 
a.     J  made  njyon  any  person,  &c."     This  is  the  reason  that 
Littleton  giveth  of  the  difference  betweene  the  rent 
service  and  the  rent  charge.  Now  it  may  bee  said,  that  this  reason 
is  taken  away  by  the  statute  21  H.  8,  for  by  that  statute  the  lord 
needs  not  avow  for  any  rent  or  service  upon  any  person  in  cer-  21  H.  8.  ea 
taine  :  and  then  by  Littleton's,  reasou  there  needeth  no  privitie  to  Viile  Sect, 
the  attornement  of  a  seigniorie  ;  for  (say  they)  cessante  cansd  vel 
rnfionc  legis,  cessat  lex,  as  at  the  common  law  no  aid  was  grant- 
able  of  a  stranger  to  an  avowrie;  because  the  avowrie  was  made 
of  a  certaine  person  :  but  now  the  avowrie  being  made  by  the 
said  act  of  21  //.  8,  upon  no  person,  therefore  the  reason  of  the  07  H.  8.  4.  b. 
law  being  changed,  the  law  itself  is  also  changed ;  and  conse-  (^])ne.  Plao.  25, 
quently  in  an  avowrie  according  to  that  act,  aid  shall  be  granted  ^O-) 
of  any  man,  and  the  like  in  many  other  cases  ;  which  case  is 
granted  to  be  good  law :  but  albeit  the  lord  (as  hath  beene  said) 
may  take  benefit  of  the  statute,  yet  may  he  avow  still  at  his 
election  upon  the  person  of  his  tenant.     And  albeit  the  manner 
of  the  avowrie  be  altered,  yet  the  privitie  (which  is  the  true  cau.se 
of  the  said  difference)  remaineth  still  as  to  an  attornement. 

"  Rent-charge,  dx."  It  is  to  be  observed,  to  what  kinde  of 
inheritances  being  granted,  an  attornement  is  rocjuisite.  And  in 
this  chapter  Littleton  speaketh  of  five.  First,  of  a  seigniorie, 
rent  service,  &c.  Secondly,  of  a  rent  charge.  Thirdly,  of  a 
rent  secke.  And  hereafter  in  this  chapter  of  two  more,  viz.  of  21  H.  7. 1. 
a  reversion  and  remainder  of  lands;  for  the  tenant  shall  never  (J^J^''":f''"^- 

need  ^^-'-^^-i 


312.  a.  312.  b.]  Of  Attornement.  L.  3.  C.  10.  Sect.  557. 

need  to  attorne  but  where  there  is  tenure,  attendance,  remainder, 
1  11.  5. 1.  or  payment  of  a  rent  out  of  land.     And  therefore  if  an  annuitie, 

37  Ass.  14.  common  of  pasture,  common  of  estovers,  or  the  like,  be  granted 

•^ilt/^fi^tV"  ^'^'^  ^'^^'  ^^'  y^^''^^;  '-^^-  *^^  reversion  may  be  granted  without  any 
Attornement,  attornemciit;  and  albeit  sometimes  in  some  of  these  cases,  or 
Br.  59.  the  like,  an  attornement  be  pleaded,  yet  it  is  surplusage,  and 

(Aat.  303.  b.)       more  than  needeth,  because  in  none  of  them  there  is  any  tenure, 

attendance,  remainder,  or  payment  out  of  land. 


Sect.  557. 


A  LSO,  if  there  he  a  lord  and  tenant,  and  the  tenant  letteth  his  tene- 
ment to  another  for  terme  of  Ufe,  the  remainder  to  another  in  fee, 
and  after  the  lord  grant  the  services  to  another,  ^c.  and  the  tenant  for 
life  attorne,  this  is  good  enough,  for  that  the  tenant  for  life  is  te7iant  in 
this  ease  to  the  lord,  ^c.  and  he  in  the  remainder  cannot  he  said  to  he 
tenant  to  the  lord,  as  to  this  intent,  untill  after  the  death  of  the  tenaiit 
for  life  :  yet  in  this  case  if  hee  in  the  remainder  dieth  without  heire,  the 
lord  shall  have  the  remainder  hy  way  of  escheat,  hecause  that  albeit  the 
lord  in  such  case  ought  to  avow  upon  the  tenant  for  life  (pur  ceo  que 
coment  que  le  seignior  en  tiel  cas  *  covient  d'avower  sur  le  tenant  a 
terme  do  vie,)  ^'c.  yet  the  ivhole  entire  tenement,  as  to  all  the  estates  of 
the  freehold  or  of  fee  simple,  or  otherwise,  ^c.  in  such  case  are  together 
holden  of  the  lord,  c^c. 

ICP  t  But  not  to  make  avowrie  upon  them  altogether.  M.  ["312."] 
3H.6.  L    b.    J 

15  E.  3.  ^^  AND  the  tenant  for  life  attorne,  &c."     For  he  that  is  (as 

Attorn.  10.  -^^  \iaX\\  beene  said)  privie  and  immediately  tenant  to  the 

18  II  6  2"  ^^"^^  "^"^^  attorne ;  and  that  is  in  this  case  the  tenant  for  life : 

1)  E.  2. '   '  and  so  of  the  other  side  if  a  seigniorie  be  granted  to  one  for  life, 

tit.  Attorn.  18.  the  remainder  to  another  in  fee,  the  attornement  to  the  tenant 
T^'ms^E^'l  for  life  is  an  attornement  to  the  remainder  also;  uulesse  it  be 

Attorn.  22.*  th:it  (A)  they  in  the  remainder  ought  to  have  acquittall,  or  other 
Vide  Sect.  580.  privilege  (whereof  they  should  be  prejudiced);  and  then  albeit 
\nf  SlO^a'  ^"  attornement  be  had  to  the  tenant  for  life,  and  he  acknowledge 

Post.320.'b.)  the  acquittall,  &e.  yet  after  his  decease,  he  in  the  remainder  shall 
not  distreyne  untill  he  acknowledge  the  acquittall,  notwithstand- 
ing the  attornement  (B)  of  the  tenant  for  life. 

9  Rep.  134.  b.  "  Shall  have  the  remainder  hy  iray  of  escheat  ^     For  the  re- 

Ant.  280.  a.)  niainder  is  holdon  of  the  lord,  but  not  immediately  holden;  and 
in  this  case,  by  the  escheat  of  the  remainder  the  seigniorie  is 
extinct;  for  the  fee  simple  of  the  seigniorie  being  extinct,  there 
cannot  remaine  a  particular  estate  for  life  thereof,  in  respect  of 

the 

*  covient  d'avower — d'avowera,  L.         \  This  paragraph  not  in  L.  and  M. 
and  M.  and  Ruh.  or  Roh. 

(A)  Here  it  seems  the  text  should  he  understood  as  if  lord  Coke  had  said  "  unless  it  bo 
that  they  who  attorned,  Ac."  instead  of"  unless  it  be  that  they  in  the  remainder,  &c. 
See  Mr.Ritso's  fntr.  p.  120.  ^^ 

(B)  Here  "of"  seeing  to  be  printed  by  mistake  instead  of"  to. 


L.  3.  C.  10.  S.  558-59.   Of  Attornement.    [312.b.  313.  a. 

the  tenure  and  attendance  over ;  and  of  this  opinion  is  Little-  3  H.  6. 1.    Old 
ton  [«]  himselfe  in  our  bookes.     But  otherwise  it  is  of  a  rent  ^^'-.^jV'E'i'is  a 
charge  in  fee  j  for  if  tluit  be  granted  for  life,  and  after  be  in  the  n  Leon."  2'25.)^ 
reversion  purchase  the  land,  so  as  the  reversion  of  the  rent  charge 
is  extinct,  yet  the  grantee  for  life  shall  enjoy  the  rent  during  his 
life,  for  there  is  no  tenure  or  attendance  in  this  case. 

"  But  not  to  make  avowrie."     This  is  added  to  Littleton,  but  M.  3  II.  6. 1. 
it  is  consonant  to  law,  and  the  authoritie  truly  cited. 


Sect.  558. 

A  LSO,  if  there  be  lord  and  tenant,  and  the  tenant  letteth  the  tene- 
ments to  a  woman  for  life,  the  remainder  over  in  fee,  and  the  woman 
taketh  husband,  and  after  the  lord  grant  the  services,  ^c.  to  the  husband 
and  his  heires ;  in  this  case  the  service  is  put  in  suspence  during  the 
coverture.  But  if  the  wife  die  living  the  husband,  the  husband  and  his 
heires  shall  have  the  rent  of  them  in  the  remainder,  ^c.  And  in  this 
case  there  needeth  no  attornement  by  parol,  ^-c.  for  that  the  husband 
which  ought  to  attorne  accepted  the  deed  of  grant  of  the  services,  ^'c.  the 
which  acceptance  is  an  attornement  in  the  law. 

^^rpHE  which  acceptance  is  an  attornement  in  the  law,  (h:"  3  E.  3.  42. 

Littleton  having  spoken  (as  hath  beene  said)  of  attornenients  Jy,.^J^g^j'\;L 
in  deed,  or  expresse,  now  cometh  to  speake  of  attornenients  in  (g^ep.  63'. 
law,  or  implied ;  and  having  before  set  downe  five  expresse  at-  9  Rep.  85. 
toruementsin  deed,  doth  in  this  chapter  enumerate  seven  attor-  ^24"/^' '^'^'"' 
nements  in  law.     Here  it  is  to  be  understood,  that  the  expresse  ^~  j.  3^ 

attornementofthehusband  willbindethe  wifeafterthe  tit.  Fines,  37. 

t313."l  00^  coverture,  and  in  as  much  as  this  acceptance  of  ^|  j^' M'^^. 
a.     J  the  grant  is  an  attornement  in  law,  without  a  word  of  ^^o  •)" 

attornement  the  seigniorie  shall  passe.     And  this  is  (Ant.  280.  a. 
the  first  example  that  Littleton  putteth  of  an  attornement  in  law,  301.  310.) 
which  amounteth  to  an  expresse  attornement,  for  that  it  is  an 
agreement  to  the  grant. 

If  the  lord  grant  his  seigniorie  to  the  tenant  of  the  land,  and 
to  a  stranger,  and  the  tenant  accept  the  deed,  this  acceptance 
is  a  good  attornement  to  extinguish  the  one  moitic,  and  to  vest 
the  other  moitie  in  the  grantee,  as  hath  beene  said. 


Sect.  559. 

TNthe  same  manner  is  it,  if  there  be  lord  and  tenant,  and  the  tenant 

taketh  wife,  and  after  the  lord  grant  (A)  his  services  to  the  wife  and 

(B)  his  heires  (et  puis  le  seiirnior  granta  Ics  services  a  la  feme  et  ses 

heires),  andthe  husband  accepteth  the  deed;  in  this  case  after  the  death  of 

the  husband  and  wife  and  her  heires  shall  have  the  services,  ^c.for  by  the 

acceptance 

(A)  "the  services,"  and  not  "his  services,"  icould  be  the  literal  traiwlution  of  the 
orltjinaltc.rt.      See  Jfr.  Jiilso's  Intr.  p.  \12. 

(B)  Here  "his"  seems  printed  hij  mistake  instead  o/"her."     See  Mr.  liitsos  Intr.p.  IIL. 


313.  a.  313.  b.]  Of  Attornement.    L.  3.  C.  10.  Sect.  560. 

acceptance  of  the  deed  hy  the  husband  (per  le  acceptance  ^  del  fait  per 
le  baron),  this  is  a  (food  attornement,  ^o.  albeit  during  the  coverture  the 
services  shall  be  put  in  suspence,  ^^e. 

(1  Roll.  Abr.  TJ  ERE  is  the  second  example  that  Littleton  putteth  of  an  at- 
938,  939,  940.)     JlX  tornement  in  law,  and  standeth  upon  the  former  reason. 

(Ant.  148.  b.)  "  Shall  he  put  in  suspence."    Suspence  commeth  of  svi^pendeo, 

(4  Rep.  52.)  and  in  lerall  understandins  is  taken  when  a  seigniorie,  rent, 
(WO.  i^ar.  i  I.;  pj.QQ(.  apprender,  &c.  by  reason  of  unitie  of  possession  of  the 
seigniorie,  rent,  &c.  and  of  the  land  out  of  which  they  issue,  are 
not  in  esse  for  a  time,  et  tunc  dormiunt,  but  may  be  revived  or 
awaked.  And  they  are  said  to  be  extinguished  when  they  are 
gone  for  ever,  et  tunc  moriuntur,  and  can  never  be  revived;  that 
is,  when  one  man  hath  as  high  and  perdurable  an  estate  in  the 
one  as  in  the  other. 


Sect.  560. 


A  LSO,  if  there  be  lord  and  tenant,  and  the  tenant  grant  the  tenements 
to  a  man  for  terme  of  his  life,  the  remainder  to  another  in  fee,  if  the 
lordgrant  the  services  to  the  tenant  for  life  *  in  fee,  in  this  case  the  tenant 
for  terme  of  life  hath  a  fee  in  the  services;  but  the  services  are  2>ut  in 
suspence  during  hislife.  But  the  heires  of  the  tenaiit  for  life  shall  have 
the  services  after  his  decease  (Mes  les  heires  |  le  tenant  a  terme  de  vie 
averont  les  services  apres  f  son  decease),  ^c.  |  And  in  this  case  there 
needeth  no  attornement  (Et  en  cest  cas  il  ne  besoigne  §  attornement) ; 
for  by  the  acceptance  of  the  deed  by  him  which  ought  to  attorne,  ^e.  this 
is  an  attornejiient  of  it  selfc  ||. 

HERE  is  the  third  case  that  Littleton  putteth  of  an  attorne- 
ment in  law.  And  it  is  to  bee  observed,  that  albeit  a  grant, 
as  hath  beene  said,  may  enure  by  way  of  release,  and  a  release  to 
the  tenant  for  life  doth  worke  an  absolute  extinguishment,  whereof 
bee  in  the  remainder  shall  take  benefit,  yet  the  law  shall  never 
make  any  construction  against  the  purport  of  the  grant  to  the 
prejudice  of  any,  or  against  the  meaning  of  the  parties 
(Slderf.  25.)  as  B^°here  it  should  ;  for  if  by  construction  it  should  fSlS.  "1 
enure  to  a  release,  the  heires  of  the  tenant  for  life  should  |_  b.  J 
be  disherited  of  the  rent;  and  therefore  Littleton  here 
saith,  that  the  heires  of  the  grantee  shall  have  the  seigniorie 
after  his  death.  And  here  is  an  attornement  in  law  to  a  grant 
suspended  that  cannot  take  eifect  in  the  grantee  so  long  as  he 
liveth,  but  shall  take  effect  in  his  heires  by  descent;  for  the 
inheritance  of  the  seigniorie  was  in  the  tenant  for  life,  and  the 
suspension  onely  during  his  life. 

Sect. 

^  del  fait  per  not  in  L.  and  M.  or  f  son  not  in  L.  and  M.  or  Roll. 

Roll.  X  ttr.  not  in  L.  and  M.  or  Roh. 

*  in  fee  not  in  L.  and  M.  or  Roh.  §  ascun   added  in  L.  and  M.  and 

\.  le  tenant  a  terme  de  vie,  not  in  Roh. 

L.  and  M.  or  Roh.  11  d:c.  added  in  L.  and  M.  and  Rob. 


L.  3.  C.  10.  S.  561-62.  Of  Attomement.  [313.  b.  314.  a. 


Sect.  561. 


(Ant.  279.) 


J)  UT where  the  tenant  hath  as  great  and  as  high  estate  in  the  tenemejits 
as  the  lord  hath  in  the  seigniory  ;  in  such  case,  if  the  lord  grant  the 
services  to  the  tenant  in  fee,  this  shall  enure  hy  way  of  extinguishment. 
Causa  patet. 

HERE  Littleton  intendeth  not  onely  as  great  and  high  an 
estate,  but  as  perdurable  also,  as  hath  beene  said ;  for  a 
disseisor  or  tenant  in  fee  upon  condition  hath  as  high  and  great 
an  estate,  but  not  so  perdurable  an  estate,  as  shall  make  an  ex- 
tinguishment. 


Sect.  562. 

A  LSO,  if  there  bee  lord  and  tenant,  and  the  tenant  maJceth  a  lease  to 
a  man  for  terme  of  his  life,  saving  the  reversion  to  himself e,  if  the 
lord  grant  the  seigniory  to  tenant  for  life  in  fee  ;  in  this  case  it  behoveth 
that  he  in  the  reversion  must  attorne  to  the  tenant  for  life  by  force  of  this 
grant,  or  otherivise  the  grant  is  voide,  for  that  he  in  the  reversion  is  ten- 
ant to  the  lord,  cf-c. 

*  Yet  hee  shall  not  hold  of  the  tenant  for  life  during  his  life.     Causa 
patet,  kc. 

HERE  in  this  case  he  in  the  reversion  of  the  tenancy  must 
attorne,  because  he  is  the  tenant  to  the  lord ;  and  yet  the 
seigniorie  shall  be  suspended  during  the  life  of  the  grantee,  be- 
cause hee  hath  an  estate  for  life  in  the  tenancie,  but  his  heires 
shall  enjoy  the  seigniorie  by  discent. 


[^^"] . 


"  Yet  he  shall  not  O^Cr  hold,  (£t."  This  is  added,  and 
ot  it  the  originall,  and  is  against  law,  and  therefore 
to  be  rejected. 


"  Tenant  to  the  lord,  (Sec.  Here  is  to  bee  understood  a  diver- 
sity when  the  whole  estate  in  the  seigniory  is  suspended,  and  when 
but  part  of  the  estate  in  the  seigniory  is  suspended.  And  in  this 
case  the  seigniorie  is  suspended  but  for  tornic  of  life  ;  [r/]  and  there-  [«]  34  Ass.  p.  15. 
fore  as  to  all  things  concerning  the  right  it  hath  his  being;  but 
as  to  the  possession  during  the  particular  estate  the  grantee  shall 
take  no  benefit  of  it;  therefore  during  that  time  he  shall  have 
no  rent,  service,  wardship,  releefe,  herriot,  or  the  like,  because 
these  belonti  to  the  possession  :  but  if  the  tenant  dieth  without  J?  ^•,^*  ^'*'. 
heire,  the  tenancie  shall  escheat  unto  the  grantee,  for  that  is  in 
the  right;  and  yet  when  the  seigniorie  is  revived  by  the  death  of 

the 

*  This  paragraph  not  in  L.  and  31.  or  Koh. 


Voucher,  S3. 


314.  a.  314.  b.]  Of  Attornement.  L.  3.  C.  10.  Sect.  563. 

the  tenant,  there  shall  be  wardship:  as  if  the  tenant  marry  with 
the  seignioresse  and  dieth,  his  heire  within  age,  the  wife  shall 
have  the  wardship  of  the  heire.  Also  in  the  case  that  Littleton, 
here  putteth,  albeit  the  seiguiorie  be  suspended  but  for  life,  yet 
some  hold  that  he  cannot  grant  it  over,  because  the  grantee  tooke 
it  suspended,  and  it  was  never  in  esse  in  him.  But  if  the  ten- 
ant make  a  lease  for  yeares  or  for  life  to  the  lord,  there  the  lord 
may  grant  it  over,  because  the  seigniorie  was  m  esse  in  him,  and 
5  E.  3.  Twong's  the  fee  simple  of  the  seigniorie  is  not  suspended.  But  if  the 
rint  298  b  )  ^*'^^  disseise  the  tenant,  or  the  tenant  enfeoffe  the  lord  upon  con- 
dition, there  the  whole  estate  in  the  seigniorie  is  suspended,  and 
therefore  he  cannot  during  the  suspension  take  benefit  of  any 
escheat  or  grant  over  his  seigniorie. 


Sect.  563. 

ALSO,  if  there  he  lord  and  tenant,  and  the  tenant  holdcth  of  the  lord 
by  XX.  manner  of  services,  and  the  lord  grant  his  seigniory  to 
another  ;  if  the  tenant  pay  in  deed  any  parcell  of  any  of  the  services  to 
the  grantee,  this  is  a  good  attornement,  of  and  for  all  the  services,  albeit 
the  intent  of  the  tenant  was  to  attorne  but  for  this  parcell,  for  that  the 
seigniorie  is  intire{p\ir  ceo  que  le  seigniory  est  fentier),  although  there 
bee  divers  manner  of  services  ivhich  the  tenant  ought  to  doe,  ^c. 

HERE  it  appeareth  that  an  attornement  being  pade  for  par- 
jiaiman  s  case.  ^^^^'  '^  S*^*^^  ^'^^'  *'^*^  whole  ;  for  seeing  he  hath  attorned  for 

29  E.  3.  23.  part,  it  cannot  bee  void  for  that,  and  good  it  cannot  be  unlesse  it 

5  E.  4.  2.  be  for  the  whole  :  but  of  this  sufficient  hath  beene  said  before 

22  Ass.  66.  •     ii  •       u      i 

7  H  4  10  '"^  *"^^  chapter.    . 

35  H.  6.  8.  per  Prisott.     (Ant.  309.  b.) 

40  E.  3.  34.  "  Pay  any  parcel!  of  the  services.'^  Here  is  the  fourth  example 

(      ep.   .)  p£  ^^  attornement  in  law ;    for  payment  of  any  parcell  of  the 

services  is  an  agreement  in  law  to  the  grant. 

(Siderf.  283.  "  Albeit  the  intent  of  the  tenant  was  to  attorne,  d'c." 

ep.    0.  a.)       jji^"  Quia  intentio  inservire  debet  legibus,  non  leges   VS\4r.  ~| 
20  n.  6.  iitfeutioni.  And  yet  as  farre  as  it  may  stand  with  the   |_     b.     J 

(1  Rep.  101.  b.     rule  of  law,  it  is  honourable  for  all  judges   to  judge 
104.  a.  Doctor      according  to  the  intention  of  the  parties,  and  so  they  ought  to  doe. 
1  Ron.  Ab'nllV.  -^^^  ^^  ^^^^^  somewhat  in  this  chapter  hath  beene  said  before. 

Cro.  Car.  1.  401.     Dyer,  4.  a.     Post.  367.  a.     Ant.  20.  47.  b.  48.  b.     2  Rep.  23. 
4  Rep.  81.  a.     Ant.  42.  213.  a.  217.  b.  222.  b.  229.  a.     1  Roll.  Abr.  303. 

Sect. 

■fforsque  un  et  added  in  L.  and  M.  and  Roh. 


L.  3.  C.  10.  S.  56^-65.  Of  Attornement.     [314.  b.  315.  a. 


Sect.  5U. 

A  LSO,  if  there  bee  lord  and  tenant,  and  the  tenant  holdeth  of  the  lord 
by  many  kinde  of  services,  and  the  lord  grant  the  services  to  an- 
other by  fine  ;  if  the  grantee  sue  a.  scire  facias  out  of  the  same  fine  for 
any  parcell  of  the  services,  and  hath  judgment  to  recover,  this  judgment 
is  a  good  attornetnent  in  laiv  for  all  the  services.* 


HERE  is  to  be  observed,  that  this  judgment  in  the  scire  facias 
(which  is  no  more  but  that  the  demandant  shall  have  execu-  1^^.  ., "^Vv  -i 
\.     ^    •  1        .  ,       11    •,     •,    •  1    xi    i   "5  i"  -J-  Quid 

tion,  &c.)  IS  a  good  attornement,   albeit   it  is  presumed  that  jy^is  clamat. 

judicium  redditur  in  invitum,  and  that  an  attornement  in  law  of  4  E.  3.  28,  29. 
any  part  is  good  for  the  whole.     And  this  is  the  fifth  example  ^''  M;^',^^' 
that  Littleton  putteth  of  au  attornement  in  law.  17  e.  3. 29. 

(Ant.  24S.  b.     6  Rep.  64.  b.) 

Note,  that  in  case  of  a  deode  nothing  passeth  before  attorne-  (5  Rep.  123. 

ment,  as  hath  beene  said.     In  the  case  of  the   fine,  the  thing  ^*^*^'-^^^*   „, 

granted  passeth  as  to  the  state,  but  not  to  distraine,  &c.  without  2  Rep.  e'r.'b." 

attornement.     In  the  case  of  the  king  the  thing  granted  doth  Sect.  .079. 

passe  both  in  estate  and   in  privitie  to  distraine,  &c.   without  i  Roll.  Abr.  294. 

attornement,  unlesse  it  be  of  lands  or  tenements  that  are  parcell  (i"giii/i39'. 

of  the  duchy  of  Lancaster,  and  lie  out  of  the  county  palatine  (1).  1  Lev.  28.) 

Sect.  565.  ir-a.?'-'- 

A  LSO,  if  the  lord  of  a  rent  service  grant  the  services  to  another,  and 

the  tenant  attorne  by  a  penny,  and  after  the  grantee  distraine  for 

the  rent  behinde,  and  the  tenant  make  rescous  ;  in  this  case  the  grantee 

shall  not  have  an  assise  for  the  rent,  but  a  writ  of  rescous,  because  the 

giving  of  the  penny  by  the  tenant  rvas  not  but  by  way  of  attornement 

(per  ceo  que  le  done  del  denier  per  le  tenant  f  ne  fuit  forsque  per  voy 

d'attornement),  <f(?.    But  if  the  tenant  had  given,  to  the  grantee  the  said 

penny  as  parcell  of  the  rent,  or  a  halfe  penny  or  a  farthing 

r315."|  by  way  of  seisin  of  the  rent,  then  this  J|@°"  is  a  good  attorne- 

L     a.    J  ment,  and  also  it  is  a  good  seisin  to  the  grantee  of  the  rent; 

andthen  upon  such  rescous  the  grantee  shall  have  an  assise,  <^-c. 

HEREUPON"  is  to  be  observed  a  diversitie  betwecne  money  39  11.  6.  3.  26. 
triven  bv  wav  of  attornement,  and  whore  it  is  given  as  parcell  ^  I'--  ^-  2- 
r  .1  ^1  c      •   •        e  ^\  4.        1^         u    •*  *l  tV„   Vide  Sect.  235. 

of  the  rent  by  way  of  seism  01  the  rout,     l^or  albeit  the  rent  be 

25  E.  3.  44. 
49  E.  3.  15.        37  11.  6.  39.      49  Ass.  p.  6.      34  II.  6.  42.       15  E.  3.     E.xecution,  63. 
40E.  3.  22.     2811.  6.0.  b.     7  H. 4.  2.  tit.  Attorney,  Br.  97.     (6  Rep.  69.)     (Ant.  281.  a.) 

not 
I  *  &c.  added  in  L.  and  M.  and  Roh.  f  ne  not  in  L.  and  M.  or  Roh. 

(1)  See  PL  Com.  221.     4  Inst.  209. 


315  a.]  Of  Attornement.     L.  3.  C.  10.  Sect.  566 

not  due  before  the  day,  yet  a  payment  of  parcell  of  the  rent 
before  hand  is  an  actuall  seisin  of  the  rent  to  have  an  assise. 
And  so  it  is  if  he  give  an  oxe,  a  horse,  a  sheepe,  a  knife,  or  any 
other  valuable  thing  in  name  of  seisin  of  the  rent  before-hand, 
this  is  good.  And  therefore  a  payment  in  name  of  seisin  is  more 
beneficiall  for  the  grantee,  because  that  is  both  an  actuall  seisin 
and  an  attornement  in  law  ;  and  yet  being  given  before  the  day 
in  which  the  rent  is  due,  it  shall  not  be  abated  out  of  the  rent. 
So  as  to  give  seisin  of  the  rent,  it  is  taken  for  part  of  the  rent ; 
but  as  to  the  payment  of  the  rent,  it  is  accounted  as  no  part  of 
the  rent ;  and  the  reason  of  the  diversitie  is,  for  that  remedies 
to  come  to  rights  or  duties  are  ever  taken  favourably.  Here 
also  appcareth  that  there  is  an  actuall  seisin,  or  a  seisin  in  deed 
of  a  rent,  whereof  (as  Littleton  here  speaketh)  an  assise  doth 
lie ;  and  a  seisin  in  law  which  the  grantee  hath  by  attornement 
before  actuall  possession  (1). 


Sect.  5m. 

ALSO,  if  there  bee  many  jo  inten  ants  which  hold  by  certaine  services 
(Item,  si  sont  plusors  jointenants  *  que  teignont  per  certaine  ser- 
vices), and  the  lord  grant  to  another  the  services,  and  one  of  the  joyn- 
tenants  attorne  to  the  grantee,  this  is  as  good  as  if  all  had  attorned  (ceo 
est  auxy  bon,  sicome  touts  f  ussent  attorne),  for  that  the  seigniory  is 
entire,  <fc. 

(1  Ro.  Ab.  302.)  TTERE  is  to  be  observed  what  manner  of  tenants  shall  attorne 
[h  ^9B.  6  3  ^^  ^^^  grant.    And  first,  [^]  if  there  be  two  or  more  join- 

26.  '      tenants,  and  one  of  them  attorne,  it  is  sufficient :  for,  as  it  hath 

See  looker's  beene  often  said,  there  cannot  be  an  attornement  in  part.  And 
^'nd^the^authorL  ^^^eit  there  is  great  authoritie  against  Littleton,  yet  the  law  hath 
ties  there  cited,  beene  adjudged  according  to  Littleton'^  opinion,  as  it  hath  beene 
(2  Roll.  Abr.  in  other  of  his  cases  when  they  have  come  in  question  :  and  as  it 
424.    Ant.  297.    jg  ^^  ^^  attornement,  so  it  is  of  a  seisin;  a  seisin  of  a  rent  by 

the  hands  of  one  joyntenant  is  good  for  all,  and  a  seisin  of  part 

of  the  rent  is  a  good  seisin  of  the  whole, 
[c]  Vid.  Lib.  4.         [<^']  If  either  the  grantor  or  the  grantee  die,  the  attornement 
fol.  8.  is  countermanded  ;  but  if  the  tenant  die,  he  that  hath  his  estate 

J'l!''  ^-  ^"l-  ^J:  may  attorne  at  any  time.     If  the  tenant  grant  over  his  estate, 

Lib.  9.  ful.  34.  ,  .  •'      .  •'  ^  °  ' 

Yid.  4  H.  6.  29.  bis  assignee  may  attorne. 
IS  E.  4.  10.  [(?"]  If  an  infant  hath  lands  by  purchase  or  by  discent,  he  shall 

[rf]  42  E.  3.  •-    -^  ^  ^  ^ 

Ago,  33.  26  E.  3.  62.  37  H.  8.  tit.  Attorne,  Br.  26  E.  3.  62.  26  Ass.  27. 
32  E.  3.  tit.  Per  qujc  Servit.  9.  2  E.  2  Attorn.  78.  2  E.  2.  ibid.  77.  18  H.  6.  2. 
Lib.  9.  f.  84,  85.  Conye's  case.    4  Mar.  Lier,  137.     21  E,  3.  Age,  85.     7  E.  2.  Age,  140. 

be 

*  que — et,  L.  and  M.  and  Rah.  f  ussent  attorne — attornerent,  L. 

and  M.  and  Roh. 

(1)  This  is  only  to  be  understood  of  a  rent  at  common  law;  but  if  the 
rent  is  limited,  as  an  use  under  the  statute, — as  if  lauds  are  conveyed  by 
lease  and  release  to  A.  and  his  heirs,  to  the  use  thati?.  may  receive  out  of 
them  an  annual  rent;  the  statute  immediately  executes  the  use  of  the  rent 
in  JS.— [Note  274.] 


L.  3.  C.  10.  Sect.  567.    Of  Attomement.  [315.  a.  315.  b. 

be  compelled  to  attorne  in  a,  per  qucc  so'vitia,  and  no  mischiefc  to 
the  infant;  for  when  he  cometh  to  full  age,  he  may  diselaimc 
to  hold  of  him,  or  he  may  say  that  he  holds  by  lesser  services; 
but  there  should  be  a  greater  mischiefc  for  the  lord  if  the  at- 
tomement of  an  infant  should  not  be  good,  for  he  should  lose 
his  services  in  the  mean  time. 

If  an  infant  be  a  lessee,  he  shall  be  compelled  to  attorne  in  a 
quid  juris  clamat.  The  attornement  of  an  infant  to  a  grant  by 
deed  is  good,  and  shall  binde  him,  because  it  is  a  lawfuU 
act,  albeit  he  be  not  upon  that  grant  by  deed  compellable  to 
attorne.  Of  baron  and  fern  Littktun  putteth  many  cases  iu  this 
chapter. 

[e]  A  man  that  is  deafe  and  dumb,  and  yet  hath  understand-  [e]  20  e.  3.  g."?. 
ing,  may  attorne  by  signs  :  [/]  but  one  that  is  not  compos  mentis  [/]  is  E.  3.  53. 
cannot  attorne,  for  he  that  hath  no  understandino-  cannot  aeree 
to  the  grant. 

What  conveyances  shall  be  good  without  attonemcnt  more 
shall  be  said  in  this  chapter  in  his  proper  place. 


[315.1  j|@- Sect.  567/ 

ALSO,  if  a  manlettcth  tenements  for  terme  of  y  cares,  ly  force  ofwhicJi 
lease  *  the  lessee  is  seised,  and  after  the  lessor  hy  Ids  deed  grant  the 
reversion  to  another  for  terme  of  life,  or  in  taile,  or  in  fee;  it  hehoveth 
in  such  case  that  the  tenant  for  y  cares  attorne,  or  otherwise  nothing  shall 
passe  to  such  grantee  by  su^h  deed.  And  if  in  this  case  the  tenant  for 
yeares  attorne  to  the  grantee,  then  the  freehold  shall  jjresently  pass  to  the 
grantee  by  such  attornement  without  any  liverie  of  seisin,  ^c.  because  if 
any  liverie  of  seisin, ^;  ^'c.  should  be  or  were  needful  to  bee  made,  then  the 
tenant  for  yeares  should  be  at  the  titne  of  the  livery  of  seisin  ousted  of 
his  j^ossession,  ivliich  should  be  against  reason  (|  le  quel  serroit  encounter 
reason),  ^-c. 


HERE  Littleton  having  spoken  of  grants  of  seigniories  and 
rent  charges,  and  rents  seclce  issuing  out  of  laud,  here 
treateth  of  a  grant  of  a  reversion  of  land  upon  an  estate  for 
yeares;  seeing  this  grant  of  the  reversion  must  be  by  deed,  and 
the  agreement  of  the  lessee  for  yeares  requisite  thereunto,  the 
freehold  and  inheritance  doe  passe  thereby,  as  well  by  liverie 
of  seisin,  if  it  were  in  possession  :  and  the  grant  of  the  reversion 
by  deed  with  the  attornement  of  the  lessee,  doe  couutervailc  in 
law  a  feoffment  by  liverie,  as  to  the  passing  of  the  freehold  and 
inheritance. 

"  For  terme  of  yeares."  [cf]  And  yet  a  tenant  by  statute  mer-  r  -t ,-,  e  3  53 
chant,  or  tenant  by  statute  staple,  or  by  elegit,  must  also  attorne ;  25  E.  3.  o3. 
for  the  grantee  may  have  a  venire  facias  ad  computandnm,  or  Brook, 
tender  the  money,  &c.  and  discharge  the  land;    and  if  the  ^'^^ 'l'^'^^'.-'^^" 

fac.  101.     Dy.  1,  2.    (Ante,  113.  a.  181.'  b.) 
reversion 

*  the  lessee  not  in  L.  and  M.  or  f  dr.  not  in  L.  and  M.  or  Roll. 

Rob.  X  ^c  q'^sl, — fjue,  L.  and  M.  and  Roh. 


315.  b.  316.  a.]    Of  Attornement.  L.  3.  C.  10.  Sect.  568. 

reversion  be  granted  by  fine,  they  shall  be  compelled  to  attorne 
in  a  quid  Juris  damat. 

And  so  the  executors  that  have  the  land  until  the  debts  bee 
paid  must  attorne  upon  the  grant  of  the  reversion,  although  they 
have  not  any  certain  terme  for  yeares. 


Sect.  568. 


A  LSO,  if  tenements  be  letten  to  a  man  for  terme  of  life,  or  given  in 

taile,  saving  the  reversion,  ^c.  if  hee  in  the  reversion  in  such  case 

grant  the  reversion  to  another  by  his  deed,  it  behooveth  that  the  tenant  of 

the  land  attorne  to  the  grantee  in  the  life  of  the  grantor,  or  otherwise  the 

grant  is  voyd*. 


H 


ERE  Littleton  speateth  of  a  reversion  expectant  upon  an 
estate  for  life,  or  a  gift  in  taile. 


^'  It  behooveth  that  the  tenant  of  the  land  JS^°"  attorne  FSIG."] 

to  the  grantee,  .&cJ'     Let  us  therefore  speak  first  of  [_     a.    J 

tenant  for  life :  and  yet  in  some  case  albeit  tenant  for 

life  hath  granted  over  his  estate,  yet  he  shall  attorne.     [a]  As  if 

[a]  10  H.  4.         tenant  in  dower  or  by  the  the  curtesie  grant  over  his  or  her  estate, 

tit.  Attorn.  16.     and  the  heire  grant  over  the  reversion,  the  tenant  in  dower  or  by 

V:  ^'o'lc'         ^'^^  curtesie  may  atturne,  because  at  the  time  of  the  grant  made 

38  E.  3.  23*.  they  were  attendant  to  the  heire  in  reversion,  and  the  grantee 

IS  E.  3.  3.  cannot  be  tenant  in  dower,  or  tenant  by  the  curtesie.     And  if 

10  E.  3.  Quid       tjjg  reversion  be  granted  by  fine,  the  fine  must  suppose  that  the 

iT'jE.  3. 18.    *      tenant  in  dower  or  by  the  curtesie  did  hold  the  land,  albeit  they 

Temps  E.  1.        had  formerly  granted  over  their  estate,  and  albeit  the  reversion 

tit.  Waste,  122.    joth  passe  by  the  fine  :  yet  the  quid  Juris  damat  must  be  brought 

against  him  that  was  tenant  at  the  time  of  the  note  levied.     But 

- .   .  g^     ■>         yet  after  the  reversion  is  granted  over,  the  grantee  shall  not  have 

F.  N.  B.55,  E.    any  action  of  waste  against  the  tenant  in  dower  or  by  the  curtesie, 

Eegist.  f.  72.       but  the  action  of  wast  must  be  brought  against  their  assignee, 

4  E. 3.  26.  j^Qjj  j^Q^  against  themselves;  for  tenant  by  the  curtesie  or  tenant 

in  dower  cannot  hold  of  any  but  of  the  heire :  and  therefore  in 

(      ep.     .    .)     pggpggt  of  the  privitie,  they  shall  attorne  and  be  subject  to  an 

action  of  waste,  as  long  as  the  reversion  remaineth  in  the  heire, 

albeit  they  have  granted  over  their  whole  estate.     And  it  is 

worthy  of  the  observation,  that  if  the  grantee  of  the  reversion 

doth  bring  an  action  of  wast  against  the  assignee  of  the  tenant  b}' 

m  R  <>■•     r"       ^^^  curtesie,  [h'}  the  pi.  must  rehearse  the  stat.  which  proveth 

°    '   "     that  no  prohibition  of  waste  in  that  case  lay  at  the  common  law, 

as  it  did  if  the  heire  had  brought  it  against  the  tenant  by  the 

curtesie  itselfe;  and  therefore  some  doe  hold,  that  if  the  heire 

doe  grant  over  the  reversion,  that  the  attornement  of  the  assignee 

of  the  tenant  by  the  curtesie,  or  of  tenant  in  dower  is  sufficient, 

because  they  afterward  must  be  attendant  and  subject  to  the 

action  of  waste. 

18  E.  4. 10.  b,  It"  the  reversion  of  lessee  for  life  be  granted,  and  lessee  for 

26  E.  3.  62.         life  assigne  over  his  estate,  the  lessee  cannot  attorne ;  but  the 

attornement 

*  dr.  added  in  L.  and  31.  and  Roh. 


L.  3.  C.  10.  S.  569-70  Of  Attornement.  [316.  a.  316.  l\ 

attorncment  of  the  assignee  is  good,  because  (as  L'dthton  here 
saith)  it  behooveth  that  the  tenant  of  the  hind  doe  attorne,  and 
after  the  assignement  there  is  no  tenure  or  attendance,  &c.  be- 
tweene  the  lessee  and  hira  in  reversion. 

If  lessee  for  life  assigncth  over  his  estate  upon  condition,  he  5  U.  5.  10. 
having  nothing  in  him  but  a  condition  shall  not  attorne ;  but 
the  assignee  may  attorne,  because  he  is  tenant  of  the  land. 


Sect.  569. 

TN  the  same  manner  is  it,  if  land  be  f  granted  in  taile,  or  let  to  a  man 
for  terme  of  life,  the  remainder  to  another  %  in  fee,  if  he  in  the  re- 
mainder will  graunt  this  remainder  to  another,  cj-c.  if  the  tenant  of  the 
land  attorne  in  the  life  of  the  grantor,  then  the  grant  of  such  a  remain- 
der is  good,  or  otherivise  not. 

J  ITTLETON  also  speaketh  here  of  an  attornement  by  ten- 
ant in  taile;  and  true  it  is  that  he  may  attorne;  but  where  12  E.  4.  3.  4. 
the  reversion  is  granted  by  fine,  he  is  not  compellable  to  attorn,  ^„^p^o^i' 
because  he  hath  an  estate  of  inheritance  -which  may  continue  ^g  -^  j'  -^^ 
for  ever.     And  so  it  is  of  a  tenant  in  taile  after  possibilitie  of  [9  Rep.  85.  b.) 
issue  extinct,  he  shall  not  be  compelled  to  attorne  for  the  inhe-  {^^^-p-  ^•) 
rit'ance  which  was  once  in  him.     [c]  But  if  tenant  in  taile  after  ?j^  R^ep.  79.) 
possibilitie  of  issue  extinct  grant  over  his  estate,  his  assigne  20  E.  3.  Quid 


shall  be  compelled  to  attorn,  because  he  never  had  but  a  bare  juris  clam.  so. 

.    ,     c      Vf  [c]  See  the  chap. 

State  for  lite.  of  tenant  in  taile 

after  possibilitie  of  issue  extinct;  and  Ewin's  case  adjudged. 


r  316. "I  i^"  But  as  to  tenant  in  taile,  note  a  diversitie  be- 
1_  b.  J  tweene  a  quid  juris  clamat,  and  a  quern  redditum 
reddit  or  a  per  quee  servitia;  for  against  a  tenant  in 
taile  no  quid  juris  clamat  lieth,  as  is  aforesaid.  But  if  a  man 
make  a  gift  in  taile,  the  remainder  in  fee,  and  the  seigniorie  or 
rent  charge  issuing  out  of  the  land  be  granted  by  fine,  the  conu- 
see  shall  maintaine  a  per  qucc  servitia,  or  a  quern  redditum,  and 
compell  him  to  attorne ;  for  herein  his  estate  of  inheritance  is 
no  privilege  to  hira,  for  that  a  tenant  in  fee  simple  (as  his  estate 
was  at  the  common  law)  is  also  compellable  in  these  cases  to 
attorne. 


Sect.  570. 


(11  Rep.  79.) 


*P    12  Edw.  4.     It  is  there  holden  by  the  whole  court  that  tenant  in 
^  •  taile  shall  not  be  compelled  to  attorne,  but  if  he  tvill  attorne  gratis, 
it  is  good  enough. 

THIS 

f  granted  in  taile,  or  not  in  L.  and        *  This  paragraph  not  in  L.  and  M. 
M.  or  Roh.  or  Rob. 

;j;  in  fee — <i'c.  L.  and  M. 


316.  b.  317.  a.]  Of  Attornement.  L.  3.  C.  10.  S.  571-72. 

12  E.  4.  3,  4.       ^I^'HIS  is  added  to  LittJeton,  and  therefore  though  it  be  good 
J-  la\v,  and  the  booke  truly  cited,  yet  I  passe  it  over. 

Sect.  571. 

ALSO,  if  land  bee  let  to  a  man  for  years,  tlie  remainder  to  another 
for  life,  reserving  to  the  lessor  a  certaine  retit  by  the  yeare,  and 
liverie  of  seisin  2ipon  this  is  made  to  the  tenant  for  year es ;  if  hee  in 
the  reversion  in  this  case  grant  the  reversion  to  another,  ^-c.  and  the 
tenant  which  is  in  the  remainder  after  the  terme  of  yeares  attorne  (si 
cestuy  en  le  reversion  en  cest  case  granta  le  reversion  a  un  auter,  f  &c. 
et  le  tenant  que  est  en  le  remainder  apres  le  terme  d  ans  |  soy  attourna) 
this  is  a  good  attornement,  and  hee  to  whom  this  reversion  is  granted 
hy  force  of  such  attornement  shall  distr cine  the  tenant  for  yeares  for 
the  rent  due  after  such  attornement,  albeit  that  the  tenant  for  yeares 
did  never  attorne  unto  him.  And  the  cause  is,  for  that  where  the  rever- 
sion is  dejJending  ujJon  an  estate  of  freehold,  it  sufficeth  that  the  tenant 
of  the  freehold  doe  attorne  upon  such  a  grant  of  the  reversion,  ^c. 

"  TT  siifficeth  that  the  tenant  of  the  freehold  doe  attorne  (1)." 

Note,   Littleton   saith   not   here,   that   the   tenant  of   the 

franktenemeat  ought  in  this  case  to  attorne,  but  that 

JJ^°"  it  suificeth  that  he  doth  attorne.  And  I  heard  sir  r317.  ~| 

Pasch.  15  Eliz.    Jamcs  Dier  chiefe  justice  of  the  common  pleas  hold,  L    ^'     J 

in  Brasbritche's  that  in  this  case  if  the  tenant  for  yeares  did  attorne, 

!^?,!!;  r\„1'^"      it  would  vest  the  reversion ;  for  seeing  the  estate  for  yeares  is 
mum  iianco.  ,  ^  '  ,.        ,         i     n  i  •     i     i  •       .       , 

able  to  support  the  estate  tor  lite,  he  shall  bmde  him  in  the  re- 
mainder by  his  attornement  in  respect  of  his  estate  and  privitie. 


(Ant.  143.  a.  Cppf     K>7^ 

150.  b.  247.  a.  k5eCI.  O^^. 

308,  a.)     (2  Roll.  Abr.  60.  424.) 

AND  it  is  to  be  understood,  that  where  a  lease  for  yeares  or  for  life, 

or  a  gift  in  taile,  is  made  to  any  man,  reserving  to  such  lessor  or 

donor  a  certaine  rent,  ^c.  if  such  lessor  or  donor  grant  his  reversion  to 

another,  and  the  tenant  of  the  land  attorne,  the  rent  passetli  to  the  grantee, 

although  that  in  the  deed  of  the  grant  of  the  reversion  no  mention  be  made 

of 
■j"  &c.  not  in  L.  and  31.  or  Roh.         |  soy  not  in  L.  and  M.  or  Roh. 
.  _ 

(1)  Two  reasons  are  given  for  this.  One  is,  that  the  possession  of  the  tenant 
for  years  is  the  possession  of  the  immediate  freeholder.  See  Brediman's  case, 
(3  Rep.  56.  b.  The  other  reason  is,  that  as  the  termor  for  years  holds  of  the 
reversioner,  and  pays  the  services  to  him,  so  the  tenant  for  life  holds  also  of 
him. — Thus,  as  both  hold  estates  of  the  reversioner,  either  of  them  may  attorn. 
—[Note  275.] 


L.  3.  C.  10.  Sect.  573.  Of  Attornement.  [317.  a.  317.  b. 

of  the  rent,  for  that  the  rent  is  incident  to  the  reversion  in  such  case,  and 
not  e  converso,  &c.  For  if  a  man  will  grant  the  rent  in  such  case  to 
another,  reserving  to  him  the  reversion  of  the  land,  albeit  the  tenant 
attorne  to  the  grantee,  this  shall  bee  but  a  rent  secke,  ^c. 

Of  this  Littleton  hath  spoken  before  in  the  chapter  of  Rents. 


Sect.  573.  (piowd.25.b.) 

ALSO,  if  a  man  let  land  to  another  for  his  life,  and  after  hee  con- 

firme  by  his  deed  the  estate  of  the  tenant  for  life,  the  remainder  to 

another  in  fee,  and  the  tenant  for  life  accepteth  the  deed,  then  is  there- 

maynder  in  fait  in  him  to  ivhom  the  remaynder  is  given  or  limited  by  the 

same  deed.     *  For  by  the  acceptance  of  the  tenant  for  life  f  of  the  deed, 

this  is  an  agreement  of  him,  and  so  an  attornement  in  law.  But 

[317.1  yet  hee  in  the  remainder  shall  not  have  a^iy  action  ^^  of  waste, 
b.  J  nor  other  benefit  by  such  remaynder,  imlesse  that  he  hath  the  said 
deed  in  hand,  ^vhereby  the  remaynder  tvas  eiitayled  or  granted 
to  him.  And  because  that  in  such  case  the  tenant  for  life  peradventure 
will  retaine  the  deed  to  him,  to  this  intent,  that  he  in  the  remaynder  should 
not  have  any  action  of  waste  against  him,  for  that  he  cannot  come  to  have 
the  deed  in  his  possession,  it  will  be  a  good  and  sure  thing  in  such  case  for 
him  in  the  remaynder  (Ei  pur  ceo  que  eu  tiel  casle  tenant  a  terme  de  vie 
voile  pur  cas  |  reteigner  le  fait  a  luy,  a  eel  entent,  que  celuy  en  le  re- 
mainder n'averoit  ascun  action  de  waste  envers  luy,  pur  ceo  que  il  ne 
poit  vener  d'aver  le  fait  en  say  possession,  ||  il  serrabone  §  et  sure  chose 
en  tiel  cas  pur  celuy  en  le  remainder,)  that  a  deed  indented  bee  made  by 
him  which  ivill  make  such  co7ifirmatio7i,  and  the  remaynder  over,  ^c.  and 
that  hee  which  maketh  such  confirmation  deliver  one  part  of  the  indenture 
to  the  tenant  for  life,  and  the  other  part  to  him  that  shall  have  the  re- 
maynder. And  then  he  by  showing  of  that  part  of  the  indenture  may 
have  an  action  of  waste  against  the  tenant  for  life,  and  all  other  advan- 
tages that  he  in  the  remaynder  may  have  in  such  a  case,  ^c. 

HERE  Littleton  putteth  a  case  of   a  remainder  whereunto  (1  Roll-  Abr. 

an  attornement  is  requisite.     And  this  is  the  sixth  example  '!?.  j"^  o    ^  „„, 

„  ^^  ^  .     ,       1  ^  ^  id.  Sect.  325. 

ot  an  attornement  m  law.  575. 

Vid.  PI.  Com. 
"  The  remainder  to  another,  &c."       Of  this  sufficient  hath   *°  Colthirst  s 
beene  said  in  the  chapter  of  Confirmation,  Sect.  525.  ptud.  cap.  20. 

fol.  93,  94. 
"  Uidrssc  that  hee  hath  the  said  deed  in  hand."  And  albeit  he    ?  ^^z  2.  in  waste, 
hath  no  remedy  to  come  to  the  deed  during  the  life  of  tenant  for   jy  ^  3 
life,  yet  because  he  is  privie  in  estate,  he  shall  not  maintaine  an   Confirmat.  4. 

35  II.  6.  fol.  8. 
14  11.  8.     PI.  Com.  149.  in  Throckmorton's  case, 
action 

*  For  not  in  L.  and  M.  or  Rob.  ||  et  pur  ceo  added  in  L.  and  M. 

"f  of  the  deed  not  in  L.  and  M.  or  and  Roh. 

Roh.  §  et  sure  chose  not  in  L.  and  M.  or 

I  reteigner — resceiver,    L.  and   M.  Roh. 
and  Roh. 

Vol.  II.— 34 


317.  b.  318.  a.]  Of  Attornement.  L.  3.  C.  10.  Sect.  574. 

action  of  waste  without  showing  the  deed;  but  when  the  re- 
mainder is  once  executed  he  shall  not  need  to  show  the  deed. 

45  E.  3. 14,  15.         "  It  icill  he  a  good  and  sure  thing,  d:c."     Hereby  it  appeareth 

^\  H  1  ^?  ^^^  necessary  it  is  to  use  learned  advice  in  a  man's  conveyance, 

(Ant."  10.  a!)        for  thereby  shall  be  prevented  many  questions,  and  not  to  follow 

the  advice  of  him  that  is  experimented  only.     For  as  inphysicke 

Nidlum  medicamentum  est  idem  omnibus,  so  in  law  one  forme 

or  president  of  conveyance  will  not  fit  all  cases. 


«^  Sect.  574. 


['I'-] 


ALSO,  if  tivo  joyntenants  he,  who  let  their  latid  to  another  for  terme 
of  life,  rendering  to  them  and  to  their  heires  a  eertaine  yearely  rent ; 
in  this  case  if  one  of  the  joyntenants  in  the  reversion  release  to  the  other 
joyntenant  in  the  same  reversion,  this  release  is  good,  and  he  to  ivhom 
the  release  is  made  shall  have  only  the  rent  of  the  tetiant  for  life,  and 
shall  only  have  a  tvrit  of  ivaste  against  him,  although  he  never  attorned 
hy  force  of  such  release,  *  kc.  And  the  reason  is,  for  the  privitie  which 
once  was  hetweene  the  tenant  for  life  and  them  in  the  reversion. 

(6  Rep.  78.  '<  ^  wo  joyntenanfsJ'     And  so  it  is,  (as  it  is  here  to  be  imder- 

A^t°i9^'^'^l^^  stood)  albeit  there  be  three  or  more  jointenants,  and  one 

of  them  releaseth  to  one  of  the  other. 

It  is  true,  that  there  is  a  difference  between   these  releases ; 
for  the  release  in  the   one  case  maketh  no  degree,  but  hee  to 
(Ant.  238.)  whom  the  release  is  made  is  supposed  in  from  the  first  feoffor; 

and  in  the  other  it  worketh  a  degree,  and  hee  to  whom  the  release 
is  made  is  in  thep<"r  by  him;  yet  in  neither  of  these  cases  there 
is  requisite  any  attornement,  for  both  of  them  are  within  Little- 
ton's reason  (for  the  privitie,  &c.) 

2  Eli?.  ^^  For  the  jyrivitie,  &c."     For  if  one  joyntenant  make  a  lease 

Di£r,  176.  fQj.  yeares,  reserving  a  rent,  and  dieth,  the  survivor  shall  not 

'  '  ^        have  the  rent ;  and  therefore   Littleton  here  addeth  materially 

for  the  privitie  that  was  between  the  tenant  for  life  and  them 

in  the  reversion. 

And  here  it  is  good  to  be  seene  what  grantors  or  others  that 

make  conveyances,  &c.  are  such  as  their  grants  or  conveyances 

are  either  good  without  attornment,  or  where  the  tenant  is  no 

45  E.  3.  6,  b.       way  compellable  to  attorn.     Tenant  for  life  shall  not  be  com- 

ifis^T^^^^'^'      Polled  to  attorne  in  a  q^dd  juris  clamat  upon  a  grant  of  rever- 

fol.'se.  Justice     sion  by  fine  holden  of  the  king  in  chicfe  without  licence;  but  the 

Windham's         reason  hereof  is  not  because  the  tenant  for  life  might  be  charged 

''^s^'  with  the  fine,  for  his  estate  is  more  ancient  than  the  fine  levied, 

but  because  the  court  will  not  suffer  a  prejudice  to  the  king,  and 

the  king  may  seize  the  reversion  and  rent,  and  so  the  tenant 

56  H,  6.  24.         shall  be  attendant  to  another.      Also  it  is  a  generall  rule,  that 

<l  Roll.  Abr.       when  the  grant  by  fine  is  defeasible,  there  the  tenant  shall  not 

'  be  compelled  to  attorne. 

As 

*  d:c.  note  in  L.  and  M.  or  Rob. 


L.  3.  C.  10.  S.  575-6.  Of  Attornement.  [318.  a.  318.  b. 

As  if  an  infant  levie  a  fine,  this  is  defeasible  by  writ  of  error 
during  his  minoritie,  and  therefore  the  tenant  shall  not  be  com- 
pelled to  attorne. 

So  if  the  land  be  holden  in  ancient  demesne,  and  he  in  the  5  E.  3,  25. 
reversion  levied  a  fine  of  the  reversion  at  the  common  law,  the  ^^  ^-  •^-  Antient 
tenant  shall  not  be  compellable  to  attorne,  because  the  estate  that    ''"^'^^'^®'     • 
passed  is  reversible  in  a  writ  of  deceit. 

So  if  tenant  in  taile  had  levied  a  fine,  the  tenant  should  not  24  E.  3.  25.  b. 

be  compelled  to  attorne,  because  it  was  defeasible  by  the  issue  in  ^l  ^-  6.  33. 
.    *i  48  E.  3.  23. 

taile. 

But  now  the  statutes  of  4  5i  7,  and  32  II.  8,  having  given  a 
further  strength  to  fines  to  barre  the  issue  in  taile,  the  reason  of 
the  common  law  being  taken  away,  the  tenant  in  this  case  shall 
be  compelled  to  attorne,  as  it  was  adjudged  [*]  in  justice  Wind-  [*]  Lib.  3. 
ham's  case.  fol;  86.  Justice 

If  an  alienation  be  in  mortmaine,  the  tenant  shall  not  be  com-  cas°      ""  ^ 
pelled  to  attorne,  because  the  lord  paramount  may  defeat  it.  17  E.  3.  7. 

22  E.  3.  18. 


[318.-1  IG-  Sect.  575.  (IRolLAbr. 

L      b.      J  301.) 

J^Nthe  same  manner,  and  for  the  same  cause,  is  it,  where  a  man  letteth 
land  to  another  for  life,  the  remainder  to  another  for  life,  reserving 
the  reversion  to  the  lessor  (En  mesme  le  maner,  il  pur  mesme  la  cause, 
est,  lou  homme  lessa  terre  a  im  auter  pur  terme  de  vie,  le  remainder  a 
un  auter  pur  terme  de  vie,  reservant  la  reversion  al  *  lessour) ;  in  this 
case  if  hee  in  the  reversion  releaseth  to  him  in  the  remainder  and  to  his 
heires  all  is  right,  <^c.  then  he  in  the  remainder  hath  a  fee,  c^c.  and  he 
shall  have  a  writ  of  wast  against  the  tenant  for  life  without  any  attorne- 
ment of  him,  ^c. 

This  needeth  no  explication. .  vide  Sect.  549. 

553. 556. 


Sect.  576. 

ALSO,  if  a  man  lett  lands  or  tenements  to  another  for  terme  of  year  es, 
and  after  he  oust  his  termor,  and  thereof  enfeoffe  another  in  fee,  and 
after  the  tenant  for  yeares  enter  upon  the  feoffee,  clay?ning  his  term,  ^c. 
and  after  doth  waste  ;  in  this  case  the  feoffee  shall  have  by  law  a  writ  of 
waste  against  him,  and  yet  he  did  not  attorne  f  unto  him.  And  the 
cause  is,  as  I  suppose,  for  that  hee  which  hath  right  to  have  lands  or 
tenements  for  yeares,  |  or  otherwise,  should  not  by  laiv  bee  misconusant 
of  the  feoffements  ivhich  were  made  of  and  upion  the  same  lands,  ^c. 
And  inasmuch  as  by  such  feoffement  the  tenant  for  yeares  was  put  out 
of  his  possession,  and  by  his  entriehe  caused  the  reversion  to  bee  to  him 

to 


*  lessour — luy,  L.  and  M.  and  Roh.       J  or  othericis",  not  in  L.  and  M.  or 
f  unto  him  not  in  L.  and  M.  or  Roh.     Roh. 


318.b.  319.a.]  Of  Attornement  L.  3.  C.  10.  Sect.  577. 

to  whom  thefeoffement  was  made,  this  is  a  good  attornement  (Et  etant  que 
per  tiel  feoffement  le  tenant  a  terme  d'ans  fuit  4.  mis  hors  de  son  pos- 
session, et  per  son  entre  il  causast  le  reversion  d'estre  a  celuy  a  que  le 
feoffement  fuit  fait,  ceo  est  bone  attornement)  ;  for  he  to  whom  the  feoff- 
ment ivas  made,  had  no  reversion  before  the  tenant  for  year 8  had  entred 
upon  him,  for  that  he  was  \\  in  possession  in  his  demesne  as  of  fee,  and 
by  the  entrie  of  the  tenant  for  yeares,  he  hath  but  a  reversion,  which  is 
by  the  act  of  the  tenant  for  yeares,  scilicet,  by  his  entrie,  ^c. 


Sect.  577. 

J^HE  same  laiv  is,  as  it  seemeth,  where  a  lease  is  made  for  life,  saving 
the  reversion  to  the  lessor,  if  the  lessor  disseise  the  lessee,  and  make  a 
feoffment  in  fee,  if  the  tenant  for  life  enter  and  make  waste,  the  feoffee 
shall  have  a  writ  of  waste  without  any  other  attornement,  causa  qua  su- 
pra, &c.  (1). 

<6Rep.  69.  a.)      'pHERE  have  been  now  in  all  seven  examples,  that  Littleton 

-L    putteth  of  an  attornement  in  law,  and  hei-e  he  putteth  two 

cases  also  of  a  notice  in  law.     And  the  reason  of  both  these  are 

here  rendred  by  Littleton.     First  for  the  notice,  Littleton  saith 

that  the  lessee  shall  not  by  law  be  misconusant  of  the  feoffments 

46  E.  3. 30.  b.      that  were  made  of  and  upon  the  same  land.     And  the  reason  of 

2  H.  5.  4.  the  attornement  is,  because  the  whole  fee  simple  passeth  by  the 

5  H.  5. 12.  feoffment,  and  the  lessee  by  his  regresse  leaveth  the  reversion  in 

18  E.  3.47.         the  feoffee,  which  (saith  Littleton)  is  a  good  attornement.     The 

9  H.  6. 10. '         same  law  it  is  of  a  tenant  by  statute  merchant  or  staple,  or  elegit. 

(5 Rep.  11.3. b.)^    ^^^  gg  \^  jg  (jf  a  lease  for  life,  as  Littleton  here  saith;  and  so  it 

cie^'p' Vi^Elil!  was  resolved  [e]  in  Brasbritche' scase,  and  after  in  the 

Deane  of  Paul's'  deane  of  Paul's  in  his  case  in  the  je@"  common  place.   r3l9.~j 

case,  20  Eliz.       ]3yt  ^\y.^\\  the  lessee  in  this  case  whether  he  will  or  no  L     *•     J 

(34  H.  6.  7.)        ^^^  ^^  ^^j.  ^^^^  amounts  to  an  attornement,  viz.  by  his 

rec^resse,  or  else  lose  the  profit  of  his  land  ?    And  some  doe  hold, 
that  in  that  case  if  the  lessee  for  life  doe  recover  in  an  assise,  this 
is  no  attornement,  because  hee  comes  to  it  by  course  of  law,  and 
not  by  his  voluntary  act.  And  yet  in  that  case,  as  in  the  case  of 
[/]  18  E.  3.        the  fine,  the  state  of  the  reversion  is  in  the  feoffee.     [/]  But 
48.  b.    Lib.  6.      others  doe  hold  it  all  one  in  case  of  a  recover}-,  and  a  regresse. 
fol.  60.  b. 
Sir  Moyle  Finehe's  case. 

M  9  H.  6. 16.  ['j]  If  the  lessor  disseise  tenant  for  life,  or  ouste  tenant  for 

Deane  of  Paul's 

case,  ubi  supra.     (Post.  321.  b.)     (6  Rep.  70.  a.) 

yeares, 

I  mis  hors  de  son  possession,  et  per     L.  and  31.  or  Koh. 
sou  entre  il  causast  le  reversion  d'estre         ||  in  possession — seised,  L.   and   M. 
a  celuy  a  que  le  feoffment  fuit,  not  in     and  Roh. 


(1)  In  these  cases,  the  tenant  for  life  enters  only  for  a  partial  estate;  he 
therefore  only  partially  defeats  the  operation  of  the  feoffment ;  so  much  of  the 
fee  as  he  does  not  defeat,  necessarily  remains  in  the  feoffee.— [Note  270.] 


L.  3.  C.  10.  Sect.  578.  Of  Attomement.  [319.  a.  319.  b, 

yeares,  and  maketh  a  feoffment  in  fee,  by  this  the  rent  reserved 
upon  the  lease  for  life  or  yeares  is  not  extinguished,  but  by  the 
regresse  of  the  lessee  the  rent  is  revived,  because  it  is  incident  to 
the  reversion  :  and  so  hath  it  beene  adjudged.  But  if  a  man  be 
seised  of  a  rent  in  fee,  and  disseise  the  tenant  of  the  land,  and 
make  a  feoffment  in  fee,  the  tenant  re-entreth,  this  rent  is  not 
revived.  And  so  note  a  diversitie  betweene  a  rent  incident  to  a 
reversion,  and  a  rent  not  incident  to  a  reversion. 

If  two  joynt  lessees  for  yeares  or  for  life  be  ousted  or  disseised  (Ant.  297.  b. 
by  the  lessor,  and  he  enfeoffe  another,  if  one  of  the  lessees  re-  ^  ■^'-'P-  ^^-  "•) 
enter,  this  is  a  good  attornement,  and  shall  binde  both ;  for  an 
attornemcnt  in  law  is  as  strong  as  an  attornement  in  deed. 

If  a  man  make  a  lease  for  life,  and  then  grant  the  reversion  (6  Rep.  69.  Mo. 
for  life,  and  the  lessee  attorne,  and  after  the  lessor  disseise  the  ^^"  ^"'"  ^^^'  *• 
lessee  for  life,  and  make  a  feoffment  in  fee,  and  the  lessee  re-enter, 
this  shall  leave  a  reversion  in  the  grantee  for  life,  and  another 
reversion  in  the  feoffee,  and  yet  this  is  no  attornement  in  law  of 
the  grantee  for  life,  because  he  doth  no  act  nor  assent  to  any 
which  might  amount  to  an  attornement  in  law.    Ut  res  inter  alios 
acta  alferi  nocere  non  debet.     Neither  hath  the  grantee  for  life 
the  land  in  possession,  so  as  he  may  well  be  misconusant  of  the 
feoffment  made  upon  the  land,  and  so  out  of  the  reason  of  Little-  (2  Rep.  671.) 
tun.     But  yet  the  reversion  in  fee  doth  passe  to  the  feoffee. 


[^b.^*]  ^  Sect.  578. 

/iLSO,  if  a  lease  he  made  for  life.,  the  remainder  to  another  in  taile, 
the  remainder  over  to  the  right  heires  of  the  tenant  for  life  ;  in  this 
case  if  the  tenant  for  life  grant  his  remainder  in  fee  to  another  hy  his 
deede,  this  remainder  maintenant  passeth  hy  the  deede  without  any  at- 
tornement* ^c.  for  that  if  any  ought  to  attourne  in  this  case,  it  should 
he  the  tenant  for  life,  and  in  vaine  it  were  that  he  should  attorne  upon 
his  owne  grant,  cj-c. 

HERE  it  appeareth  that  where  the  ancestor  taketh  an  estate 
of  freehold,  and  after  a  remainder  is   limited  to  his  right  (Ant.  13.  b. 
heires  that  the  fee  simple  vesteth  in  himself,  as  well  as  if  it  had  Jo?"/^'  ^^^' 
beene  limited  to  him  and  his  heires;  for  his  right  heires  are  in 
tliis  case   words  of  limitation   of  estate,  and  not  of  purchase. 
Otherwise   it  is  where   the  ancestor  taketh   but  an   estate  for  (1  Rep.  66.) 
yeares  :  as  if  a  lease  for  yeares  be  made  to  A.  the  remainder  to 
B.  in  tayle,  the  remainder  to  the  right  heires  of  A.  there  the 
remainder  vesteth  not  in  A.  but  the  right  heires  shall  take  by 
purchase  if  A.  die  during  the  estate  taile  :  for  as  the  ancestor  and  (Ant.  54.  b.) 
the  heire  are  correlutiva  of  inheritances,  so  arc  the  testator  and 
executor,  or  the  intestate  and  administrator  of  chattels.    And  so 
it  is  if  ^1.  make  a  feoffment  in  fee  to  the  use  of  B.  for  life,  and 
after  to  the  use  of  C.  for  life  or  in  taile,  and  after  to  the  use  of 
the  right  heires  of  B.     B.  hath  the  fee  simple  in  him  as  well  (l  Roll.  Abr. 

when  627.) 

*  &c.  not  in  L.  and  M.  or  Rob. 


319.  b.  320.  a.]    Of  Attornement.  L.  3.  C.  10.  Sect.  579. 

•when  it  is  by  way  of  limitation  of  use,  as  when  it  is  by  act 
executed  (1). 

Vid.  Sect.  194.  " /«,  vaine  it  were,  &c."      Quod  vnmim  et  inutile  est  lex  non 

^'^'  requirit.     Lex  est  ratio  gumma,  qucejubet  quce  sunt  utiliaet  ne- 

cessaria   et   contraria  prohibet ;  and  arguments  drawne   from 

hence  are  forcible  in  law. 


Sect.  579. 


ALSO,  if  there  he  lord  and  tenant,  and  the  tenant  holdeth  of  the  lord 
by  certain  rent,  and  knight's  service,  if  the  lord  grant  the  services 
of  his  tenant  by  fine,  the  services  are  presetitly  in  the  grantee  by  force  of 
the  fine;  but  yet  the  lord  (A)  may  not  distreine  for  any  parcell  of  the  ser- 
vices, ivithout  attornement:  hut  if  the  tenant  dieth,  his  heire 
within  age,  the  lord  shall  have  the  wardship  J^^  of  the  hodie  ["320."] 
of  the  heire,  and  of  his  lands,  ^"c.  albeit  he  never  attorned,  be-  L  ^-  J 
cause  that  the  seigniorie  was  in  the  grantee  presently  by  force 
of  the  fine-  And  also  in  such  case  if  the  tenant  die  without  heire,  the 
lord  shall  have  the  tenancie  by  ivay  of  escheat. 

HERE    Littleton   beginneth    to   shew   what   advantages  the 
conusee  of  a  fine   may  take  before  attornement,  and  what 
not. 
[A]  8  E.  .3.  44.  \}C\  First,  he  cannot  distreyne,  because  an  avowrie  is  in  lieu 

in  IT  fi'  1  fi'  ^^  ^"  action ;  and  thereupon  privitie  is  requisite.     So  likewise, 

34  11.  6.  7.'  ^'I'i  foi"  ^^  same  cause,  he  can  have  no  action  of  waste,  nor  writ 

12  E.  4.  4.  of  entrie,  ad  communem  legem,  or  in  consimili  casii,  or  in  cam 

V^a'^'J'o  2'>roviso,  writ  of  customes  and  services,  nor  writ  of  ward,  &c.  (1*) 

4S  E.  3.  {5.  b.  ^^^  ^^  ^  mvin  make  a  lease  for  yeares,  and  grant  the  reversion 

3  E.  2.  Droit,  33.  by  fine,  if  the  lessee  be  ousted,  and   the  conusee  disseised,  tlie 
(F.  N.  B. 60.        conusee  without  attornement,  shall  maintain  an  assise;  for  this 

4  Inst  209  ^^^^*  ^'^  maintained  against  a  stranger,  where   there  needeth  no 
210.)                   privitie.     And  such  things  as  the  lord  may  seise,  or  enter  into 

without  suing  any  action,  there  the  conusee,  before  any  attorne- 
ment, may  take  benefit  thereof;  as  to  seise  a  ward  or  heriot ; 
or  to  enter  into  the  lands  or  tenements  of  a  ward  ;  or  escheated 
to  him  ;  or  to  enter  for  an  alienation  of  tenant  for  life  or  yeares ; 
or  of  tenant  by  statute  merchant,  staple,  or  elegit  to  his  dis- 
herison. 

Sect. 

(A)  i.  e.  the  grantee  of  the  servicer.  For,  a»  Littleton  says,  "  the  seigniory  was  in  the 
grantee  presently  by  force  of  the  fine,  and,  consequently,  the  grantee  of  the  services  is 
supposed  to  become  lord  by  virtue  of  the  grant. 


(l)The  observation  of  Mr.  Douglas  upon  this  point  (note  to  page  506  of  his 
R-eports)  deserves  the  reader's  most  serious  attention. 

(1*)  The  distinction  in  these  cases  seems  to  be,  that  the  grantee  is  entitled, 
before  attornement,  to  what  the  lord  may  seize;  but  not  to  any  thiug  which 
lies  in  action. — [Note  277.] 


L.  3.  C.  10.  Sect.  580-81-82.    Of  Attornement.  [320.  a. 


Sect.  580,  581,  582. 

TN  the  same  manner  it  is,  if  a  man  graunt  the  reversion  of  his  tenant 
for  life  to  anoth&r  hy  fine,  the  reversion  maintenant  passeth  to  the 
grantee' by  force  of  the  fine,  but  the  grantee  shall  never  have  an  action 
of  wast  without  attornement,  ^^c. 

Sect.  581. 

nUTyet  if  the  tenant  for  life  alieneth  in  fee,  the  grantee  may  enter, 
*  tfc.  because  the  reversion  was  in  him  by  force  of  the  fine,  and 
such  alienation  loas  to  his  disheritance. 


Sect.  582. 

'DUT  in  this  case  where  the  lord  granteth  the  services  of  his  tenant  by 
fine,  if  the  tenant  die  {his  heire  being  of  full  age)  the  grantee  by  the 
fine  shall  not  have  relief e,  nor  shal  ever  distreinefor  relief e,  unlesse  that 
hee  hath  the  attornement  of  the  tenant  that  dieth  (Mes  en  f  ceo  cas  lou  le 
seignior  granta  les  services  de  son  tenant  per  fine,  si  tenant  dcyie  (son 
heire  esteant  de  plein  age)  le  grantee  per  le  fine  n'avera  reliefe,  ne 
unques  distreynera  pur  reliefe,  sinon  que  il  |  avoit  rattornement  del 
tenaunt  que  morust):  X  for  of  such  a  thing  which  lieth  in  distiesse, 
lohereupon  the  writ  of  replevin  is  sued,  Sfc.  a  man  must  and  ought  to 
avow  the  takirig  good  and  rightfull,  ^c.  and  there  there  ought  to  be  an 
attornement  of  the  tenant,  although  the  graunt  of  such  a  thing  be  by 
fine  :  but  to  have  the  wardship  of  the  lands  or  tenements  so  holden  dur- 
ing the  nonage  of  the  heire,  or  to  have  them  by  way  of  escheat,  there 
needs  no  dis'tresse,  ^c.  but  an  entrie  into  the  land  by  force  of  the  right 
of  the  seigniore,  rvfiich  the  grauntee  hath  by  force  of  the  fine,  tff.     Sic 

vide  diversitatem,  &c.  ( que  le  grantee  ad  per  force  del  fine,  &c. 

Sic  vide  diversitatem  §.)  " 

"I  T  is  said  in  our  books  that  if  tenaunt  for  life  have  a  privilege  40  E.  3.  7. 
i  not  to  be  impeachable  of  waste,  or  any  other  privilege,  if  he  ^-^  £ '3".  :h2. 
doth  attorne  without  saving  his  privilege,  that  he  hath  lost  it;  45  j;  3.6. 
which  is  so  to  be  understood,  where  he  attornes  in  a  ^piid  juris  21  E.  3.  48. 
chanat  brought  by  the  conusee  of  a  fine,  that  if  he  clainieth  not  24  ^l^'^^.-'" 
his  privilege,  but  attorne  generally,  his  privilege  is  lost,  for  that  ^  j^"  b."i36.  b. 
the  writ  supposeth  him  to  be  but  a  bare  tenant  for  life ;   and  by  (3  Rep.  3j5. 
his  generall  attornement,  according  to  the  writ,  he  is  barred  for  J^j^^^P'/JJ.; 
ever  to  claime  any  privilege  but  a  bare  estate  for  life.  _  But  if  4^2.  29(i. 
upon  a  grant  of  the  reversion  by  deed,  the  tenant  for  life  doth  Aut.  274.  b.) 

attorne. 


*  dr.  not  in  L.  and  M.  or  Roh.         tournenicnt,  L.  and  M.  and  Roh. 

t  ceo  not  in  L    and  M.  and  Roh.  %  '^'C-  ^^^^'^^-'^^   '"^  ^'    ^^^  ^^-  ^"^  ^'^^■ 

4.  avoit  rattoruLmeut— fusoit   at-         §  &c.  added  in  L.  and  M.  and  Roh. 


Vid.  Sect.  557. 


320.  b.  321.  a.J  Of  Attoinement.  L.  3.  C.  10.  Sect.  583. 

attorne,  he  loseth  no  privilege  ;  for  there  can  be  no  conclusion 
or  barre  by  the  attornement  injyais:  and  so  it  is  of  an  attorne- 
ment  in  law.     As  if  the  lessor  disseise  the  lessee  for  life,  and 
make  a  feofferaent  in  fee,  and  the  lessee  re-enter ;  this 
is  an  attornem6nt  in  law,  which  shall  not  prejudice  rSQO.I 
him  B®"  of  any  privilege  :  so  it  is  if  the  lessor  levie  L     b-     J 
a  fine  of  the  reversion,  and  the  conusee  die  without 
heire,  whereby  the  reversion  escheateth,  in  this  case  the  law  doth 
(5  Rep.  39.  b.)     supply  an  attornment,  and  therefore  the  lessee  shall  lose  no  pri- 
vilege.    But  in  the  quid  juris  clamai,   if  the   lessee  shew  his 
(Ant.  157.  b.        estate  and  his  privilege,  and  is  ready,  saving  to  him  his  privilege, 
&c.  to  attorne,  hereby  either  his  privilege  shall  bee  allowed  and 
[b]  43  E.  3.  5.      entred  of  record,  or  he  shall  not  be  compelled  to  attorne  :  [h]  and 
(6  Rep.  4.  a.        jf  jjjg  plaintife  be  within  age,  so  as  hee  cannot  acknowledge  the 
ep-   0-    •)      privilege,  the  tenant  shall  not  be  compelled  to  attorne  until  his 
45  E.  3.  11.  a.      full  age,  when  he  may  acknowledge  it.     But  otherwise  it  is  (as 
Vet.  N.  B.  in        some  hold)  if  a  quid  Juris  clamat  be  brought  by  baron  and  feme, 
TE^'Llsiesne''^*  *^^*^  privilege  shall  be  entred  into  the  rolle,  notwithstanding  shee 
56,  &  per  qute      is  a  feme  covert.   And  in  a^:><;r  quce  servida  brought  by  the  con- 
servitiii,  16.         usee  of  the  mesne,  the  tenant  may  shew  that  he  held  by  homage 
39  H  6  25'         auncestrell,  and  saving  to  him  his  warrantie  and  acquittall,  he 
18  E.  4.  7.  '         is  readie  to  attorne.  Tn  the  same  manner,  if  the  tenant  hath  any 
(7  Rep.  4.  b.)       other  acquittall,  and  the  mesne  levie  a  fine  to  one  for  life,  the 
remainder  to  another  in  fee,  the  tenant  for  life  bringeth  a  per 
qux  servitia,  and  the  tenant  is  ready  to  attorne,  saving  his  ac- 
quittall, and  the  plaintife  acknowledgeth  it,  and  thereupon  the 
tenant  attorne,  tenant  for  life  dieth  ;  in  this  case,  albeit  regularly 
the  attornement  to  the  tenant  for  life  is  an  attornement  to  him 
in  the  remainder,  yet  in  this  case  hee  in  the  remainder  shall  not 
distreine,  till  he  hath  acknowledged  the  acquittall,  which  must 
be  in  Siper  quce  servida,  brought  by  him  against  the  tenant. 

"Alienefh  in  fee,  &c."     Of  this  sufficient  hath  been  said  in 
the  next  precedent  Section. 

"Shall  not  have  rel iff e,  &c."     Of  this   sufficient  hath  beene 
said  in  the  next  precedent  Section. 


J8^  Sect.  583.  [^f  ^-J 

A  LSO,  if  there  he  lord,  mesne  and  tenant,  and  the  mesne  grant  hij  fine 
the  services  of  his  tenant  to  another  in  fee,  and  after  the  grantee  die 
without  heire,  now  the  services  of  the  7nesnaltie  shall  come  and  escheate  to 
the  lord  paramount  hy  way  of  escheat;  *  and  if  afterwards  the  services  of 
the  mcsnaltie  bee  behind,  in  this  case  he  winch  tvas  lord  par  am  ont  may 
distreine  the  tenant,  notivitlistajiding  that  the  tenant  did  never  attorne : 
and  the  cause  is,  for  that  the  mcsnaltie  was  in  deed  in  the  grantee  by  force 
of  the  t  said  fine,  and  the  lord  paramont  may  avow  upon  the  grantee, 
because  in  deed  hee  ivas  his  tenant,  albeit  he  shall  not  be  compelled  to  this, 
§-e.  But  if  the  grantor  in  this  case  had  died  without  heire  in  the  life  of 
the  grantee,  then  he  should  bee  compelled  to  avow  upon  the  grantee;  and 

also 

*  and  not  in  L.  and  M.  or  Roh.  f  said  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  10.  Sect.  584.    Of  Attornement.    [321.  a.  321.  b. 

also  in  as  much  the  lord  paramount  doth  not  claime  the  mesnaltie  by 
force  of  the  grant  made  by  fine  levied  by  the  mesne  |,  but  by  vertue  of 
his  seigniorie  paramont,  \\  viz.  by  way  of  escheat,  he  shall  avow  upon 
the  tenant  for  the  services  which  the  mesne  lead,  i^c.  albeit  that  the  ten- 
ant did  7iever  attorne. 

HERE   Littleton  putteth  the  case  where   one  that  claimeth 
under  a  conusee  by  fine   may  distraine  or  maintaine  any  45  E.  3.  2. 

action,  albeit   there  was   never  any  attornement  made  to   the  ^4  H.  6.  7. 

*     1  •       *i     .  1    .u  1  •         .   *  37  II.  6.  38. 

couusee,  or  to  uim  that  hath  his  estate.  3y  y  g  ;^2. 

5  11.  7.  18.  per  curiam. 

And  here  is  a  diversitie  betweene  an  act  in  law  that  giveth  Lib.  6.  foi.  68. 
one  inheritance  in  lieu  of  another,  and  an  act  in  law  that  con-  I'/  Mojlo 
veyeth  the  estate  of  the  conusee  only.     Of  the  former  Littleton     '"''  ^  *  '^^^^' 
here  putteth  an  example  of  the  escheat  of  the  mesnaltie  which 
drowneth  the  seigniorie  paramount;  and  therefore  reason  would 
that  the  lord  by  this  act  in  law  should  have  as  much  benefit  of 
the   mesnaltie   escheated,  as  he   had   of  the  seigniorie   that  is 
drowned ;  and  the  rather  for  that  the  law  casteth  it 

[321. "I  upon  him,  and  hee  hath  no  remedy  to  compell  the 
b.     J  tenant  to  Jjfeg"  attorne.     Another  reason  hereof  Lit- 
tleton here  yeeldeth,  because  the  lord  comnieth  to  the 
mesnaltie  by  a  seigniorie  paramount,  and  therefore  there  need- 
et;h  no  attornement.     \(~\  As  if  lessee  for  life  be  of  a  mannor  [•]  Temps  E.  2. 
and  he  surrender  his  estate  to  the  lessor,  there  needeth  no  at-  ^,1^^"^  ^oo 
tornement  of  the  tenant's,  because  the  lessor  is  in  by  a  title  para-  p^.f  pngot.  * 
mount.     But  if  the  conusee  dieth,  and  the  law  casteth  his  seig- 
niorie upon  his  heire  by  descent,  he  shall  not  be  in  any  better 
estate   than   his   ancestor  was,   because    he   claimeth  as    heire  (Ant.  104. b, 
meerely  by  the  conusee.  ^'^'^-  *^-^ 

So  it  is  (as  hath  beene  said)  if  the   conusee  of  a  fine  before  (5  Rep.  113.) 
attornement  bargaineth  and  selleth  the  seigniorie  by  deed  in- 
dented and  inroUed,  the  bargainee  shall  not  distraine,  because 
the   bargainor,  from  whom   the  seigniorie  moveth,  had  never 
actuall  possession. 

So  and  for  the  same  reason  if  a  reversion  be  granted  by  fine,  f^ir  Moyie 
and  the  conusee  before  attornement  disseise  the  tenant  for  life  J"'"*^''^' *  ease, 
and  make  a  feotfment  in  fee,  and  the  lessee  re-enter,  the  feofite 
shall  not  distraine. 


Sect.  584. 

TN the  same  manner  it  is,  ivhere  the  reversion  of  a  tenant  for  life  is 
granted  by  fine  to  another  in  fee,  and  the  grantee  afterwards  dieth 
without  heire,  noio  the  lord  hath  the  reversion  by  way  of  escheat  ;  and  if 
after  the  tenant  maketh  ivast,  the  lord  shall  have  a  ivrit  of  waste  against 
him,  notwithstandi)ig  that  he  never  attorned,  causa  qua  supra.  But 
w/iere  a  man  claimeth  by  force  of  the  grant  made  by  the  fine,  f  scil.  as 
heire,  or  as  assignee,  <|'(?.  </<ere  hee  shall  not  distraine  \.  nor  avowe,  nor 
have  an  action  of  waste,  (fc  without  attornement. 

HERE 
X  &c.  added  in  L.  and  M.  and  Rob.         \.  nor  avowe,  not  in  L.  and  M.  or 
Ij  viz.  not  in  L.  and,  M.  or  Roh.  Roh.  nor  in  MSS. 

f  &c.  added  in  L.  and  M.  and  Roh. 


321.  b.  322.  a.]  Of  Attomement.  L.  3.  C.  10.  S.  585,  586. 

(Ant.  104.  b.)  T_T  ERE  Littleton  expresseth  two  diversities.  First,  betweene 
11  an  act  iu  law,  and  the  grant  of  the  party  This  case  is  put 
[d]  45  E.  3.  2.  of  an  \jl]  escheat,  which  is  a  uieere  act  in  law,  but  so  it  is  wheu 
sM^'t'^'is'  )^  ^^  '^  p^irtly  by  act  in  law,  and  partly  by  the  act  of  the  party;  as 
curinm.  ''*^'^  ^^  ^'^*^  conusce  of  a  statute  merchant  extcndeth  a  seigniorie  or 
13  11.4.  rent,  hee  shall  distraine  without  any  attorneuient.     If  a  man 

Avowrie,  2;]7.  make  a  lease  for  life  or  yeares,  and  after  levie  a  fine  to  A.  to  the 
1  RolK  Abr.  293.  "'^^  °^  ^-  ^^^  ^^^'^  heires,  B.  shall  distraine  and  have  an  action 
Ant.  153.  a.)  of  waste,  albeit  the  conusee  never  had  any  attornemeut,  because 
Lib.  6.  fol.  68.  the  reversion  is  vested  in  him  by  force  of  the  statute,  and  hath 
Fhfche's'cas^e  ^^  remedy  to  compell  the  lessee  to  attorue. 
(Mo.  92.  68.)     27  H.  8.  cap.  10. 

(Ant.  309.  And  so  it  is  of  a  bargaine  and  sale  by  deed  indented  and  in- 

\  ^'^  \^n  rolled,  but  this  is  by  force  of  a  statute  since  Litthton  wrote. 

6  Rep.  68.  *b?'  Secondly,  where  he  that  commeth  in  by  act  in  law  is  in  the 

10  Rep.  45.)        per,  as  the  heire  of  the  conusee,  who  setteth  in  his  ancestor's 

sent,  tanquam  j^ars  an/ecessoris  de  sanguine ;  and  the  lord  by 

escheat,  which  is  an  estranger,  and  commeth  in  meerely  in  the 

post. 


(F.N.B.  121.a.) 


Sect.  585. 


ALSO,  in  ancient  horouglis  and  cities,  where  lands  and 

J|@^  tenements  ivithin  the  same  horoughes  and  cities  are  rSQ^.T 
devisable  by  testament  by  custome  and  use,  ^-c.  if  in  such  bo-  \_  a.  ] 
rough  or  citie  a  man  be  seised  of  a  rent  service,  or  of  a  rent 
charge  (si  en  tiel  §  borough  au  citie  home  soit  seisie  de  rent  service  ou 
de  rent  charge),  and  dcviseth  such  rent  or  service  to  another  by  his  tes- 
tament and  dieth  ;  in  this  case,  he  to  whom  such  devise  is  made,  may 
distreine  the  tenant  for  the  rent  or  service  arere,  although  the  tenant 
did  never  attorne. 

34  ir.  6.  6.  'O  ERE  doth  LiftJeton   put  a  case  where  a  man   may  have  a 

\}\!^'f}\\  ^^  seigniory,  rent,  reversion,  or  remainder  meerely  by  the  act 

21  II.  6.  38!  ^^  the  party,  and  may  distraine,  and   have  any  action  without 

r.  N.  B.  121.  X.    any  attornement,  and  that  is  by  devise  of  lands  devisable   by 

custome  when  Littleton  wrote  by  the  last  will  and  testament  of 

the  owner. 


|^5:S:S  Sect.  586. 

(1  Rep.  120.     3  Rep.  19.     6  Rep.  16.  81.)     (8  Rep.  94.)     (10  Rep.  40.  87.)     (4  Rep.  66.) 

TN  the  same  manner  is  it,  ivhere  a  man  letteth  such  tenements  devisable 

to  another  for  life,  or  for  yeares,  and  deviseth  the  reversion  by  his 

testament  to  another  in  fee,  or  in  fee  taile,  and  dyeth,  and  after  the  tenant 

commits  tvaste,  he  to  whom  the  devise  was  made  shall  havea  writ  of  waste, 

although  the  tenant  doth  never  attorne.     Aiid  the  reason  is,  for  that  the 

will 

§  cas  added  in  L.  and  31.  and  Roh. 


L.  3.  C.  9,  S.  587.      Of  Attornement.       [322.  a.  322.  b. 

will  of  the  devisor  made  hy  Im  testament  shall  bee  performed  according 
to  the  intent  of  the  devisor  ;  and  if  the  effect  of  this  should  lie  upon  the 
attornement  of  the  tenant,  f  then  perchance  the  tenant  ivould  never  attorne, 
and  then  the  will  of  the  devisor  should  never  bee  performed,  %  #^-  «^^ 
for  this  the  devisee  shall  distraine,  cfc.  or  he  shall  have  an  action  of  waste, 
cfc.  without  attorneinent.     For  if  a  man  deviseth  such  tenements  to 

another  by  his  testament,  habendum  sibi  in  perpetuum,  and 
["333.1  dieth,  and  the  "^g^  devisee  e.nter,  he  hath  a  fee  simple,  causa 
L     b.    J  qua  supra  ;  yet  if  a  deed  of  feoffment  had  beene  made  to  him 

by  the  devisor  of  the  same  tenemejits,  habendum  sibi  in  perpe- 
tuum, and  livery  of  seisin  loere  made  upon  this,  hee  should  have  an  es- 
tate but  for  terme  of  his  life  (*uncore  |  si  fait  de  feoffment  ust  este  XX  ^'^}\ 
a  luy  per  le  devisor  en  sa  vie  de  mesmes  les  tenements,  habendum  sibi 
in  perpetuum,  et  liver j  dc  seisin  sur  ceo  fuit  fait,  il  n'averoit  estate 
forsque  pur  terme  de  sa  vie.) 

BOTH  this  and  the  precedent  case  stands  upon  one  and  the 
same  reason,  which  Littleton  hereyeekleth,  viz.  because  that 
the  will  of  the  devisor  expressed  by  his  testament  shall  be  per- 
formed according  to  the  intent  of  the  devisor;  and  it  shall  not 
lie  in  the  power  of  the  tenant  or  lessee  to  frustrate  the  will  of 
the  devisor  by  denying  his  attornement.  Here  Littleton  men-  (i  Roll.  Abr. 
tioneth  a  raaxime  of  the  common  law,  viz.  Quod  xiltima  voluntas  29''') 

.  .77  7  •    M      ^-  Vide  Sect.  167. 

tastatoris  est  pcrimptcnda  secundum  veram  mtentwnem  suam :   gracton,  li.  1. 

and,  Eeijmblicce    interest  suprema  hominum   testamenta   rata  f.  ii.  &  f.  60. 
haheri.  FleU,  lib.  2  cap. 

15.  Britton.  fol. 
....  ,      78.  &  f.  212.  b. 

"  Testament,"  Testamcntum,  i.e.  testatio mentis, vimchismaae  (6  Rep.  23. 
nulla  prsesentis  metu  pericuU,  sed  sola  cogitatione  mortalitatis.  Ant.  9.  b.) 
Omne  testamentum  morte  consummatum. 

"  For  if  a  man  deviseth  such  tenements  to  another,  &c."  Here  22  E.  3. 16. 
Littleton  putteth  a  case  where  the  intent  of  the  testator  shall  be  34  H.  6.  7.^ 
taken,  viz.  where  a  man  by  devise  shall  have  a  fee  simple  with-  ^g  ^i.  8.  4. 
out  these  words  (heires) ;  and  here  Littleton  putteth  the  diver- 
sitie  betweeue  a  will  and  a  feoffment. 

Now  by  the  statutes  of  32  and  3-1  //.  8.  (as  hath  beene  said  Vide  Sect.  167. 
in  the  chapter  of  Burgage)  lands,  tenements,  and  hereditaments 
are  du'visable,  as  by  the  said  acts  doe  appcare. 

Sect.  587. 

ALSO,  if  a  man  bee  seised  of  a  mannor  which  is  parcell  in  demesne 
andpareell  in  service,  and  is  thereof  disseised,  but  the  tenants  which 
hold  of  the  mannor  doe  never  attorne  to  the  disseisor  (Item,  si  home  seisie 
(i'uu  mannor  quel  est  parcel  en  demesne  et  parcel  en  service,  et  ent  soit 
disseisie,  mes  les  tenants  que  teignont  del  mannor  ne  unque  attournant 
§  ale  disseisor) ;  in  this  case,  albeit  the  disseisor  dieth  seised,  and  his  heire 
is  in  by  discent,  <^c.  yet  may  the  disseisee  distreinefor  the  rent  behinde, 
and  have  the  services,  <jx'.     But  if  the  tenants  come  to  the  disseisor  and 

say, 

f  &c.  added  in  L.  and  M.  and  Roh.       4-  ^i — ^^'  ^-  ""'^  ^^-  ''" -^  ^'''''• 

t  &c.  not  in  L.  and  M.  or  Iloh.  XX  "^*  ^^^^ — ^"'*'  -^-  ""'^'^  ^^• 

*  et  added  in  L.  and  M.  and  Roh.       \  a  le — de  le,  L.  and  M.  and  Roh. 


322.  b.  323.  a.]  Of  Attornemcnt.  L.  3.  C.  10.  Sect.  588. 

say.  We  become  your  tenant,  ^c.  or  to  make  to  him  some  other  attorne- 
mcnt, cj'O.  and  after  the  disseisor  dieth  seised,  then  the  disseisee  cannot 
distraine  for  the  rent,  c^c.  for  that  all  the  mannor  descendeth  to  theheire 
of  the  disseisor,  ^e. 

(6  Rep.  69.  a.)  J^ITTLETON  having  spoken  of  estates  gained  by  lawful  con- 
veyances, doth  now  speake  of  estates  gained  by  wrong ;  and 
here  putteth  a  ease  of  a  disseisin  of  a  mannor,  where  it  appear- 
eth,  that  the  disseisor  cannot  disseise  the  lord  of  the 
rents  or  services  without  B®""  the  attornement  of  the  r323."] 
tenants  of  the  disseisor  ;  for  seeing  an  attornement  is  |_  a.  J 
requisite  to  a  feoffment  and  other  lawfull  conveyances 
a  fortiori,  a  disseisor  or  other  wrong  doer  shall  not  gaine  them 
without  attornement.  The  like  law  is  of  an  abator  and  an  in- 
6  H.  7. 14.  trudor.     But  albeit  the  disseisor  hath  once  gotten  the  attorne- 

II  II  I  i^i'  \^  ^^^'^^  ^^^  ^^^  tenants  and  payment  of  their  rents,  yet  may  they 
(Crn.  Car.  303.  '  refuse  afterwards  for  avoiding  of  their  double  charge.  And  here 
Ant.  180.)  the  attornement  of  the  tenant  of  a  mannor  to  a  disseisor  of  the 

demeanes  shall  disposscsse  the  lord  of  the  rents   and   services 
parcell  of  the  mannor,  because  both  demeanes,  rents  and  services 
(1  Roll.  Abr.        make  but  one  entire  mannor,  and  the  demeanes  are  the  princi- 
CG2.)  pall :  but  otherwise  it  is  of   rents  and   services  in  grosse,  as  in 

this  next  Section  our  author  teacheth  us. 


i'^S-A'bfis,  Sect.  588. 

F.  N.  B.  179.  K.     (Ant.  180.  b.     2  Siderf.  75.) 

7?  UT  if  one  holdeth  of  mee  by  rent  service,  which  is,  a  service  in  grosse, 
*  and  not  by  reason  of  tny  mannor,  and  another  that  hath  no  right, 
claimeth  the  rent,  and  receives  and  taketh  the  same  rent  of  my  tenant 
by  coertion  of  distresse,  or  by  other  forme  {et  un  auter  que  nul  droit  ad, 
t  claima  le  rent,  J  et  receive  et  prent  mesme  le  rent  de  mon  tenant  per 
cohersion  de  distres,  ou  per  auter  forme),  and  disseiseth  mee  by  such 
taking  of  the  rent ;  albeit  such  disseisor  dieth  so  seised  in  taking  of  the 
rent,  yet  after  his  death  I  may  well  distreine  the  tenant  for  therent  which 
was  behinde  before  the  decease  of  the  disseisor  (devant  le  ]|  decease  del 
disseisor),  and  also  after  his  decease.  And  the  cause  is,  for  that  such 
disseisor  is  not  my  disseisor  but  at  my  election  and  will.  For  albeit 
he  taketh  the  rent  of  my  tenant,  ^c.  yet  I  may  at  all  times  distreine  my 
tenant  for  the  rent  behinde,  §  so  as  it  is  to  mee  but  as  1  will  suffer  the 
tenant  too  bee  so  long  time  behinde  in  payment  of  the  saine  rent  unto  me 
(per  tant  de  temps  arere  ].  pur  paier  a  moy  meme  le  rent),  ^-c. 

Sect. 

*  and  not  by  reason  of  my  mannor,  \\  decease — distress,    L.    and   M. 

not  in  L.  and  M.  or  lloh.  and  Roll. 

■\  claima — claimant  mesme,  L.  and  §  &c.   added   in  L.   and    M.   and 

M.  and  Roh.  Koh. 

J  et    receive — a    receiver,    L.    and  \.  pur — de,  L.  and  M.  and  Roh. 

31.  and  Roh. 


L.  3.  C.  10.  Sect.  589.    Of  Attornement.     [323.  a.  323.  b. 


Sect.  589.  ^'^'^-''-^ 

TpOR  the  payment  of  my  tenant  to  another  to  whom  hee  ought  not  to 

pay,  is  no  disseisin  to  me,  nor  shall  oust  me  of  my  rent  ivithout  my 

will  and  election  (Car  le  payment  de  mon  tenant  a  un  auter  a  que  il  ne 

doit  pas  payer,  n'est  pas  disseisin  a  moy,  ne  ousta  moy  pas  de  moi  rent 

sans  ma  volunt  ^  et  ma  election),  (j-c.    For  although  I  may  have 

[333.  "I  an  assise  against  such  pernor,  yet  this  is  at  my  |Cj"  election^ 
b-  J  whether,  I  will  take  him  as  my  disseisor,  or  no.  So  such  discents 
of  rents  in  grosse  shall  not  oust  the  lord  of  his  distresse,  but  at  any 
time  he  may  well  distreynefor  the  rent  behinde,  ^c.  And  in  this  ease  if 
after  the  distresse  of  him  which  so  wrongfully  tooke  the  rent,  I  grant  by  my 
deed  the  service  to  another,  and  the  tenannt  attorne,  this  is  good  enough, 
and  the  services  by  such  grant  and  attornement,  are  piresently  in  the 
grantee,  i^c.  Bid  otherwise  it  is  where  the  rent  isparcell  of  a  mannor, 
and  the  disseisor  dieth  seised  of  the  ivhole  mannor,  as  in  the  case  next 
before  is  sayd,  ^-c. 


"J^ERE  Littleton  putteth  a  diversitie  betweene  a  rent  service  (2  Rep.  37, 


J-J-  parcel  of  a  maunor,  whereof  be  had  spoken  before,  and  a  ^.-'tf.'.fj; 


rent  Service  in  grosse.     For  a  man  cannot  be  disseised  of  a  rent 

service  in  grosse,  rent  charge,  or  rent  secke,  by  attornemout  or 

payment  of  the  rent  to  a  stranger,  but  at  his  election  ;   for  the 

rule  of  law  is.  Nemo  redditum  alterius  incito  domino  pcrcipere 

aiU  po.'inidere  potest ;  and  our  author  hath  before  [*]  taught  us  [*]  VkIo  Sect. 

what  be  disseisins  of  rents  services,  rents  charges,  and  rents  ^J^'   ^^'      ' 

seeks,  and  payment  to  a  stranger  is  none  of  them,  but  at  the  (Cro.  Car.  303.) 

lord's  election,  as  our  author  here  saith. 

*'  Pernor,"  i.  e.  the  taker  of  my  rent.     But  if  the  disseisee  24  E._3.  4. 
bring  an  assise  airainst  such  a  pernor,  then  he  doth  admit  him-  i     .?"   '   .i     • 

,-*  e  _  i  J  See  the  authori- 

Selie  out  01  possession.  ties  there  fol- 

lowing in  the 

"  Discents."     A  discent  of  a  rent  in   grosse  bindeth  not  the  "est  pani graph, 
right  owner  but  that  he  may  distrcyne,  albeit  he  admitted  him-  23  11.3. ' 
selfe   out  of  possession,   and   determined    his   election,   as  by  tit.  Ass.  439. 
brinsrintf  of  an  assise,  &c.  ?*  .  ^-  ^^•'^^- 

lo  Ass  t)    lo 

If  the  tenant  of  the  land  pay  the  rent  to  a  stranger  which  hath  jg  £_  3 
no  right  thereunto,  and   the  right  owner  release  to  him,  this  Kelease,  56. 
release  is  eood,  because  he  thereby  admitted  himselfe  to  be  out  J,^' ■^' ^^^^   _, 
of  possession.     But  if  the  tenant  had  given  him  any  thing  in  ■^l  jj' 4/3. 
name  of  attornement,  and  the  right  owner  had  released  to  iiim,  Fiet.  li.  4.  ca.  12. 
this  release  had  beene  void,  because  an  attornement  only  can  be 
no  dLsseisin  of  the  rent. 

"  I  grant  by  my  deed,  c&c."    This  also  proveth,  that  the  right  (Ant.  Sect.  541.) 
owner  is  not  out  of  possession,  and  that  this  grant  over  is  a 
demonstration  of  his  election  that  hee  is  in  possession. 

Sect. 

^  et— ou  sanS;  L.  and  M,  and  RoJi. 


324.  a.  321.  b.]  Of  Attornement.  L.  3.  C.  10.  S.  590,  591. 

(Dyer,  94.  b.)  ScCt.     590. 

(Cro.  Car.  303.)     (8  Rep.  89.) 

A  LSO,  if  I  be  seised  of  a  mannor,  par  cell  in  demesne  and  par  cell  in 
service,  and  I  give  certaine  acres  of  the  land,  parcell  of  the 
demesne  of  the  same  mannor,  to  ]^^  another  in  taile,  yeelding  to  r324."| 
mee  and  to  my  heires  a  certaine  rent,  ^c.  if  in  this  case  Ihe  dis-  L  ^-  J 
seised  of  the  mannor,  and  all  the  tenaunts  attorne  and  pay  their 
rents  to  the  disseisor,  and  also  the  sayd  tenant  in  tailepay  the  rent  by  me 
reserved,  to  the  disseisor,  and  after  the  disseisor  dieth  seised,  *  ^c.  and  his 
heire  enter,  and  is  in  by  discent,  yet  in  this  case  I  may  wel  distreyne  the 
tenant  in  taile,  and  the  heires,  for  the  rent  by  me  reserved  upon  the  gift, 
scilicet,  as  well  for  the  rent  being  behinde  before  the  discent  to  the  heire 
of  the  disseisor,  as  also  for  the  rent  which  happeth  to  be  behind  after  the 
same  discent,  7iotwithstanding  such  dying  seised  of  the  disseisor,  ^c.  And 
the  reason  is,  for  that  tohen  a  man  giveth  lands  f  in  taile,  saving  the  rever- 
sion to  himself e,  and  hee  upon  the  sayd  gift  reserveth  to  himself e  a  rent  or 
other  services,  all  the  rent  and  services  are  incident  to  the  reversion  ;  and 
when  a  man  hath  a  reversion  he  cannot  be  ousted  of  his  reversion  by  the 
act  of  a  stranger  ,unlesse  that  thetenaunt  be  ousted  of  his  estate  and  posses- 
tion,  ^c.  For  as  long  as  the  tenant  in  taile  and  his  heires  continue  their 
possession  by  force  of  my  gift,  so  long  is  the  reversion  in  me  and  in  my 
heires  (car  si  longement  §  que  le  tenant  en  le  taile  et  ses  heires  con- 
tinuont  lour  possession  per  force  de  mon  clone,  cy  longement  est  le 
reversion  en  moy  et  en  mes  heires) :  and  in  as  much  as  the  rent  and  ser- 
vices reserved  upon  suchgiftbe  incident  and  depiending  iipon  the  reversion, 
whosoever  hath  the  reversion,  shall  have  the  same  rent  and  services,  ^c. 

m^  Sect.  591.  \^l^'] 

TN  the  same  manner  is  it,  tchere  I  let  parcell  of  the  demesnes  of  the 
mannor  to  another  for  terme  of  life,  orforterme  ofyeares,  rendring  to 
mee  a  certaine  rent,  ^c.  albeit  I  be  disseised  of  the  mannor,  ^c.  and  the 
disseisor  die  seised,  4.  ^c.  arid  his  heire  bee  in  by  discent  (et  son  heire 
^  esteant  eins  per  discent),  yet  Imay  distreinefor  the  rent  arere  ut  supra, 
notwithstanding  such  discent ;  for  when  a  man  hath  made  such  a  gift  in 
taile,  or  such  a  lease  for  life,  or  for  y  cares,  of  parcell  of  the  demesnes  of  a 
mannor,  (fc.  saving  the  reversion  to  such  donor  or  lessor,  ^e.  and  after  he 
is  disseised  of  the  mannor,  ^-c.  such  reversion  cfter  such  disseisin  is  several 
from  the  mannor  in  deed,  though  it  be  not  severed  in  right  |.     And  so 

thou 

*  d'c.  not  in  L.  and  31.  or  Koh.  \.  &c.  not  in  L.  and  M. 

-j"  to  another,  added  in  L.   and  M.  %  esteant   not   in   L.    and   31.    or 

and  Rob.  I?oh. 

§  en  ceo  cas  added  in  L.  and  M.  %  *^''^-  ^ddcd   in   L.    and   M    and 

and  Roh.  Rob. 


L.  3.  C.  11.  Sect.  592.  Of  Discontinuance.  [324.  b.  325.  a. 

thou  niayst  see  {my  sonne)  a  diversitie,  tvhere  there  is  a  mannor  parcell 
in  demesne  and  parcell  in  services,  which  services  are  parcell  of  the 
same  mannor  7iot  incident  to  any  reversion,  ^c.  and  where  they  are  in- 
cident to  the  reversion,  ^-c, 

HERE  Littleton  putteth  a  diversitie  betweene  rents  and  ser-  (^^o.  Cnr.  303. 
vices  parcell  of  a  manner  (whereof  he  had  spoken  before)  ^^^'i 
and   rents  and    services  incident  to  a   reversion   parcell   of  a  (ii  Rep.  47, 48. 
mannor.  Pluwd.  197.  b.) 

And  the  reason  of  this  diversitie  is,  for  that  as  long  as  the 
donee  in  taile,  lessee  for  life,  or  lessee  for  yeares,  are  in  pos- 
session, they  preserve  the  reversion  in  the  donor  or  lessor;  and 
so  long  as  the  reversion  continue  in  the  donor  or  lessor,  so  long 
do  the  rents  and  services  which  are  incident  to  the  reversion 
belong  to  the  donor  or  lessor.  Neither  can  the  donor  or  les.sor 
.^be  put  out  of  his  reversion,  unless  the  donee  or  lessee  be  put 
out  of  their  possession;  and  if  the  donee  or  lessee  be  put  out 
of  their* possession,  then  consequently  is  the  donor  or  lessor 
put  out  of  their  reversion.  But  if  the  donee  or  lessee  make  a 
regresse,  and  regaine  their  estate  and  possession,  thereby  doe 
they  ipso  facto  revest  the  reversion  in  the  donor  or  lessor. 

And  here  is  to  be  observed,  that  when  a  man  is  seised  of  a 
mannor,  and  maketh  a  gift  in  taile,  or  lease  for  life,  &c.  of  par- 
cell  of  the  demesne  of  the  mannor,  [a]  the  reversion  is  part  of  [a]  18  Ass.  p.  2. 
the  mannor,  and  by  the  errant  of  the  mannor  the  reversion  shall  38  H.  6.  ."^S. 

•  Vl     Pnm     Kill 

passe  with  the  attornement  of  the  donee  or  lessee.     But  if  the  mgrstone's  case 
lord  make  a  gift  in  taile,  or  a  lease  for  life  of  the  whole  mannor,  io3.    Lib.  5. 
excepting  Blacke-Acre,  parcell  of  the  demesnes  of  the  mannor,  f^l-  1^.  12.  25. 
and  after  he  granteth  away  his  mannor;  Blache-Acre  shall  not  g^-  '  ^  j,"^  *"'' 
passe;   because  during  the  estate  taile,  or  lease  for  Briefe,  713. 

t3Q5.1  Jg@°  life,  it  is  severed  from  the  mannor.     And  so  note  (Post.  349. 
a.     J  a  diversitie,  that  a  reversion  of  part  may  be  parcell  of  ^^      P'  ' 

a  mannor  in  possession,  but  a  part  in  possession  cannot 
be  parcell  of  the  reversion  of  a  manner  expectant  upon  any 
estate  of  freehold.  But  if  a  man  make  a  lease  for  yeares  of  a 
mannor,  excepting  Blacke  Acre,  and  after  granteth  away  the 
manner,  Blacke  Acre  shall  passe,  because  the  freehold  being 
entire,  it  remaineth  parcell  of  the  mannor,  and  one  j)?-rtr(}>e  of 
the  whole  manner  shall  serve.  But  otherwise  it  is  in  case  of  the 
gift  in  taile  or  lease  for  life  excepting  any  part,  there  must  be 
several  writs  oi prctcipe,  because  the  freehold  is  severall. 


Chap.  11.  Of  Discontinuance.  Sect.  592. 

TilSCONTINUANCE  is  an  ancient  ivord  in  the  laiv,  and  hath 
divers  significations,  ^c.     But  as  to  one  intent  it  hath  this  significa- 
tion, viz.  where  a  man  hath  aliened  to  another  certaine  lands  or  tenements 
and  dieth,  and  another  hath  right  to  have  the  same  lands  or  tenements, 
hut  hee  may  not  enter  into  them  because  of  such  an  alienation,  ^c. 

"DISCONTINUANCE" 


325.  a.]       Of  Discontinuance.      L.  3.  C.  11.  Sect.  592. 

Vide  Sect.  037.  ^^  JTilSGONriNUANCE"  is  a  word  compounded  of  de  and 
continuo,  for  continuare  is  to  continue  without  intermis- 
sion. Now  by  addition  of  de  (cvphonice  gratid  d!.s)  to  it  which 
is  a  privative,  it  signifieth  an  intermission.  DiHconfinuare  nihil 
aliud iii(/nificat  qitdm  i)i(ermi(terc,  desucsccre,  interrumpere.   And 

[<(]  s  11.  4.  8.  b.   as  our  author  saith,  [a]  it  is  a  very  ancient  word  in  law  (1). 

1 1  II.  4.  85.  b.  j^  discontinuance 

(I)  I.  As  to  discontinuances  in  general : — In  note  1,  p.  239.  a.  it  was  observed, 
that  in  the  case  of  a  disseisin,  while  the  possession  remains  in  the  disseisor,  it  is 
a  mere  naked  possession,  unsupported  by  any  right;  and  that  the  disseisee  may 
restore  his  possession,  and  put  a  total  end  to  the  possession  of  the  disseisor,  by 
an  entry  on  the  land,  without  any  previous  action;  but  that,  if  the  disseisor 
dies,  the  heir  comes  to  the  possession  of  the  estate  by  a  lawful  title.  It  was  the 
same,  by  the  old  law,  if  the  disseisor  aliened;  the  alienee  came  in  by  a  lawful 
title.  By  reason  of  this  lawful  title,  the  heir,  in  the  first  instance,  and  the 
alienee  in  the  second,  acquires  a  jjresioujjtive  right  o/jwssession,  which  is  so  far 
good  even  against  the  person  disseised,  that  he  loses  by  it  his  right  to  recover 
the  possession  by  entry,  and  can  only  recover  it  by  an  action  at  law.  When 
the  right  of  entry  is  thus  lost,  and  the  party  can  only  recover  by  action,  the 
possession  is  said  to  be  discontinued.  This  is  the  general  import  of  the  word 
discontinuance;  but,  in  its  usual  acceptation,  it  signifies  the  effect  of  aliena- 
tions made  by  husbands  seised /i<re  uxor  is;  by  ecclesiastics  seised  ^wj-e  ecclesice', 
or  by  tenants  in  taile;  those  being  the  three  instances  adduced  by  Littleton  of 
a  discontinuance.  But  other  cases,  where  tjie  party  having  the  right  could  not 
restore  his  possession  by  entry,  and  was  therefore  left  to  his  remedy  by  action, 
were  also,  in  Littleton's  time,  termed  discontinuances.  Thus  before  the 
statute  of  the  11  H.  7.  c.  20,  the  alienations  of  a  woman  seised  of  an  estate  iu 
dower,  or  of  an  estate  of  the  gift  of  her  husband,  or  of  any  of  his  ancestors, 
were  said  to  be  a  discontinuance;  and  before  the  statutes  of  o2  H.  8.  c.  31 .  and 
14:  El.  c.  8.  recoveries  suffered  by  tenants  for  life,  or  tenants  by  the  courtesy, 
or  tenants  in  taile  after  possibility  of  issue  extinct,  or  even  by  the  feoffee  of 
tenant  for  years,  worked  a  discontinuance.  See  sir  William  Pelham's  case, 
1  Rep.  14.  It  is  to  be  observed,  that  there  is  a  material  difference  between  the 
situation  or  title  of  the  alienee  of  any  person  whose  alienation  makes  a  discon- 
tinuance, and  the  situation  or  title  of  the  heir  or  alienee  of  a  disseisor;  for 
the  heir  and  alienee  of  a  disseisor  immediately  claim  under  a  person  coming 
in  by  a  wrongful  title,  and  their  estates,  though  not  defeasible  by  entry,  are 
immediately  defeasible  by  action.  But  the  alienee  of  every  person,  whose 
alienation  is  said  to  be  a  discontinuance,  claims  by  a  person  having  a  lawful 
estate,  and  the  estate  of  the  alienee  is  unimpeachable  during  the  life  of  the 
discontinuor.  It  should  also  be  observed,  that  a  discontinuance  extends  to 
those  cases  only  where  a  person  is  dispossessed  of  an  estate  of  freehold :  and, 
where,  though  he  has  lost  his  right  of  entry,  he  can  still  recover  the  possession 
by  action.  At  the  common  law,  if  there  was  a  terme  for  years,  and  the  tenant 
of  the  freehold  suffered  a  common  recovery  by  covin,  it  was  a  good  bar  to  the 
termor;  for,  not  having  the  freehold,  he  could  not  falsify  the  recovery,  so  that 
all  his  term  and  intei'est  in  the  land  was  lost,  and  his  only  remedy  was  an 
action  of  covenant  against  the  lessor.  His  possession,  therefore,  or  rather  his 
interest,  was  absolutely  lost,  not  merely  interrupted.  Even  after  the  statutes 
of  Gloucester,  and  the  21  H.  8.  c.  15.  which  preserved  the  interest  of  the 
termer  for  years,  against  a  common  recovery,  as  the  possession  of  the  termor 
for  years  is  considered  in  the  law  as  the  possession  of  him  who  has  the  next 
estate  of  freehold,  the  recovery  is  never  said  to  discontinue  the  estate  of  the 
termor  for  years;  the  expression  discontinuance  being  applied  solely  to  those 
cases  where  the  freehold  is  divested.  The  peculiar  import  of  the  word  discon- 
tinuance, 


L.  3.  C.  11.  Sect.  592.    Of  Discontinuance.         [325.  a. 

A  discontinuance  of  estates  in  lands  or  tenements  is  properly 
(in  legal  understanding)  an  alienation  made  or  suffered  by  tenant  (10  Rep.  97.) 
in  taile,  or  by  any  that  is  seised  in  aufer  droit,  whereby  the  issue 
in  taile,  or  the   heire   or   successor,  or  those   in  reversion    or 
remainder,  are  driven  to  their  action,  and  cannot  enter. 

All  which  is  implied  by  the  description  of  our  author,  and  by 
the  (c&c.)  in  the  end  of  this  Section. 

I  have  added  (properly)  by  good  warrant  of  our  author  him- 
self e,  for  Scctione  470,  he  useth  discontinuance  for  a  devesting  or 
displacing  of  a  reversion,  though  the  cntrie  be  not  taken  away. 

This  discontinuance  consisteth  in  doing  or  suffering  an  act  to  (1  Roll.  Abr. 
be  done,  as   hereafter  shall  appearc.     And   where   our  author  ^"'"-  '*^'^-) 
saitli,  that  it  hath  divers  signitications,  there  is  also  a  discon- 
tinuance of  processe  consisting  in  not  doing,  where  the  processe. 
is  not  continued,  concerning  which  there  is  an  excellent  statute 
made  in  furtherance  of  justice  in  [^]  1  E.  6,  and  is  well  expound-  [h]  Vide  the 
ed  in  my  Reports,  and  therefore  need  not  here  to  be  inserted.       ^'"t;  °^^  ^"  ^' 

There  is  another  erroneous  proceeding,  and  that  consisteth  in  3x' Eliz.  c.  1. 
misdoing;  as  when  one  processe  is  awarded  instead  of  another,  lib.  7.  f.  30,  31. 
or  when  a  day  is  given  which  is  not  legall,  this  is  called  a  mis-  ^p-  ^^  ^,^^^  '^® 
continuance,  and  if  the  tenant  or  defendant  make  default,  it  is  de'proces"''"*^^ 
error;  but  if  he  appeare,  then   the  miscontinuance  is  salved,  (i  Sid.  173. 
otherwise  it  is  of  a  discontinuance.     But  let  us  returue  to  the  2  Cro.  284.) 
discontinuance   of  estates  in  lands,  whereof  Littleton  doth  treat  ^j,  e  330  ^* 
in  this  Chapter.  37  11.  6.  25,  26. 

9  E.  4.  18.     12  E.  4. 

"  Significations."  Here  (as  in  many  other  places)  it  appcareth  Vide  Sect.  74. 
how  necessary  it  is  to  know  the  signitication  of  words.  ^oq" 

And  in  this  Chapter  it  appeareth,  that  when  Littleton  wrote, 
the  estate  in  lands  and  tenements  might  have  beene  discontinued 
five  manner  of  wayes,  viz.  by  feoffment,  by  fine,  by  release  with 

warrantie, 

tinuance,  where  applied  to  the  cases  mentioned  by  Littleton,  is  shortly,  but 
forcibly  expressed  by  Mons.  Houard,  who  explains  the  word  discontinuance, 
<*  Interruption  clu  droit,  quon  a  snr  tm  fonds,  par  la  vente  quun  auter  charge 
de  conserver  ce  droit,  en  a  faite."  See  Anciennes  Loix  dc  Francois,  2  vol.  435. 
Our  doctrine  of  discontinuance  bears  some  analogy  to  the  doctrine  of  inter- 
ruption in  the  civil  law. — There  interruption  when  applied  to  the  real 
property,  signifies  the  ousting  of  a  person,  from  the  possession  of  his  land. 
From  that  time  he  ceases  to  be  the  possessor  of  it ;  and  if  he  does  not  renew 
his  possession,  but  permits  the  dispossesser  to  retaine  it,  he  absolutely  loses  his 
right  to  it,  and  the  disseisor  is  said  to  acquire  it  by  prescription.  It  is 
observable,  that  by  the  laws  of  the  Twelve  Tables,  possession  during  two  years 
formed  a  prescription  for  land ;  one  year,  for  personal  estate.  Dio.  Sic.  20. 
In  G  Rep.  fol.  8.  b.  9.  a.  lord  Coke  observes,  that  the  reason  why  the  law  will 
not  permit  a  person  who  is  in  by  judgment  of  law,  to  have  his  possession  dis- 
turbed by  the  disseisee,  is,  "  to  take  away  the  multiplicity  and  infinitencss  of 
*'  suits,  trials,  recoveries,  and  judgments  in  one  and  the  same  case;  and  there- 
"  fore  in  the  judgment  and  policy  of  the  law  it  was  thought  more  profitable 
"  to  the  commonwealth,  and  more  for  the  honour  of  the  law,  to  leave  some 
''  without  remedy,  and  to  put  others  to  their  writ  of  right,  without  any 
"  respect  of  coverture,  &c.  than  that  there  should  not  be  any  end  of  actions 
"  and  suits."  In  a  preceding  note,  the  writer  has  already  referred  to  the  ex- 
cellent argument  of  the  master  of  the  rolls,  in  Beckford  v.  Wade,  17  Ves.  87. 
—[Note  278."! 
Vol  II.— 35 


325.  b.]         Of  Discontinuance.     L.  3.  C.  11.  Sect.  593. 

warrantie,  confirmation  with  warrantie,  and  by  suffer- 
ing of  a  recovery  in  &  S^^prsecipe  quod  reddat.  And  r335.1 
this  was  to  the  prejudice  of  five  kinds  of  persons,  viz.  L  ^-  J 
of  wives,  of  heires,  of  successors,  of  those  in  rever- 
sion, and  of  those  in  remainder.  But  for  wives,  and  their  heires, 
and  for  successors,  the  law  is  altered  by  acts  of  parliament  since 
Littleton  wrote,  as  in  this  Chapter  in  their  proper  places  shall 
appeare. 


Sect.  593. 


AS  if  an  abbot  be  seised  of  certaine  lands  or  tenements  in  fee,  and 
alieneth  the  same  lands  or  tenements  to  another  in  fee,  or  in  fee  taile, 
or  for  terme  of  life,  and  after  the  abbot  dieth  (et  *  puis  I'abbe  morust), 
his  successor  cannot  enter  into  the  said  lands  or  tenements,  albeit  he  hath 
right  to  have  them  as  in  right  of  his  house,  but  he  is  put  to  his  action 
to  recover  the  same  lands  or  tenements,  which  is  called  a  writ,  breve  de 
ingressu  sine  assensu  capituli,  &c.  f 

HERE  Littleton  putteth  an  example  of  a  discontinuance  made 
by  one  seised  in  anter  droit,  as  by  an  abbot  who  had  a  fee 
simple  in  the  right  of  his  monastery,  and  therefore  his  alienation 
without  the  assent  of  his  covent  had  beene  a  discontinuance  at 
the  common  law,  and  had  driven  his  successor  to  a  writ  de 
ingressu  sine  assensu  capituli. 


Regiat.  Orig. 
fo.  230, 
F.  N.  B.  196. 
Bracton,  lib.  4. 
fol.  .323. 
Fleta,  lib.  5. 
cap.  34. 


21  E.  4.  86. 
(Plo.  536.) 
(Ant.  85.  a.) 
(Post.  341.  b.) 
(11  Rep.  Mag- 
dalen College's 
case.) 


See  more  of  this 
matter  hereafter 
in  this  chapter, 
Sect.  648,  and 
before  Sect.  528. 


"  De  ingressu  sine  assensu  capituli,  &c."  It  is  called  so  because 
the  alienation  was  sine  asseyisu  capituli  ;  for  if  it  had  beene  cum 
assensu  capituli,  it  should  have  beene  a  barre  to  the  successor. 
And  because  the  successor  could  not  enter,  the  common  law 
gave  him  this  writ,  and  is  so  called  of  these  words  contained 
in  the  writ,  which  writ  you  may  read  in  the  Register,  aud 
Fitzherlcrt' s  K.  B. 

And  here  is  to  be  noted,  that  in  law  the  covent,  albeit  they 
be  regular  and  dead  persons  in  law,  yet  are  they  said  in  law  to  be 
capitidum  to  the  abbot,  as  well  as  the  deane  and  chapter,  that  be 
secular  to  the  bishop.  But  it  is  to  be  observed  and  implied  in 
this  ((f'c.)  that,  a  sole  body  politike  that  hath  the  absolute  right 
in  them,  as  an  abbot,  bishop,  and  the  like,  may  make  a  discon- 
tinuance ;  but  a  corporation  aggregate  of  many,  as  deane  and 
chapter,  warden  and  chaplaines,  master  and  fellows,  maior  and 
commonaltie,  &c.  cannot  make  any  discontinuance ;  for  if  they 
joyne,  the  grant  is  good:  and  if  the  deane,  warden,  master,  or 
maior  make  it  alone  where  the  body  is  aggregate  of  many,  it  is 
void,  and  worketh  a  disseisin.  But  now  as  hath  beene  said  by 
the  statute  of  27  H.  8,  and  31  H.  8,  all  the  abbots,  priors,  and 
other  religious  persons  are  so  dissolved,  as  there  be  none  remain- 
ing this  day,  and  by  the  statutes  of  1  Eliz.  and  13  Eliz.  cap.  10, 
and  1  Jac.  cap.  3,  bishops  and  all  other  ecclesiastical  persons 


*  puis  not  in  L.  and  31.  or  Roh. 


f  &c.  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  11.  Sect.  594.  Of  Discontinuance.  [325.  b.  326.  a. 

are  disabled  to  alien  or  discontinue  any  of  their  ecclesiasticall 
livings,  as  by  the  same  acts  doth  appeare  (1). 


Sect.  594. 

ALSO,  if  a  man  be  seised  of  land  as  in  right  of  his  wife, *  ^c.  and 
thereof  infeoffe  another,  t  #c.  and  dieth,  the  wife  may  not  enter,  hut 
IB  put  to  her  action,  the  which  is  called,  cui  in  vita,  &c. 

"  TN  right  of  his  wife,  (fee."  (2)  That  is  to  say,  in 
r326.  "I  fee  simple,  fee  taile,  JB^"  or  for  life.  Here  Lit- 
|_     a.      J  tleton  putteth  another  case  where  a  man  is  seised  in 

auter  droit,  and  may  make  a  discontinuance,  as  the 
husband  seised  in  the  right  of  his  wife,  and  therefore  the  com- 
mon law  gave  her  a  cui  in  vita,  and  her  heire  a  sur  cui^  in  vitd, 
because  they  could  not  enter.     But  this   is  altered  since  our  Bracton,  lib.  4. 
author  wrote,  by  the  statute  of  32  H.  8.  by  the  purview  of  which  f-^2()2  *  22^*.^^ 
statute,  the  wife  and  her  heires  after  the  decease  of  her  husband  ^  ^^  g^  ^  ^g^  ' 
may  enter  into  the  lands  or  tenements  of  the  wife,  notwithstand-  f.  X.  B.  193. 
iu2  the  alienation  of  her  husband.  ^<^g'^*-  ^^  H.  8. 

^  And  ^^P-2^- 

*  &c.  not  in  L.  and  M.  or  Roh.  f  &c.  not  in  L.  and  M.  or  Roh. 


(1)  II.  As  to  discontinuances  hij  ecclesiastical  persons: — It  is  generally  sup- 
posed that  ecclesiastical  persons  were  permitted  to  acquire  real  estate  as  early 
as  the  reign  of  the  emperor  Constantino.  The  tenth  century  is  commonly 
considered  as  the  period  when  donations  to  them  were  most  frequent  and  con- 
siderable. Very  soon  after  they  were  permitted  to  acquire,  they  were  restrained 
from  alienating,  their  property.  See  Dec.  Grra.  Cas.  12.  Q.  2.  c.  3.  Long 
leases  made  by  ecclesiastical  persons  are  declared  to  be  null  by  the  Council  of 
Trent,  Sess.  25.  de  Ref.  ch.  11.  For  the  learning  relating  to  the  leases  made 
by  ecclesiastical  persons,  the  editor  begs  to  refer  to  the  much-admired  collec- 
tions on  this  subject  in  Bacon's  Abr.  vol.  3.  tit.  Leases,  supposed  to  be  ex- 
tracted from  a  manuscript  of  sir  Geoffry  Gilbert.  It  is  to  be  observed,  that 
bishops  and  abbots  were  supposed  to  have  the  possession  in  fee,  and  might 
therefore  alien  in  fee ;  but  parsons  were  considered  to  have  no  more  than  a  life 
estate.     See  Gilb.  Ten.  110.— [Note  279.] 

(2)  III.  As  to  discontinuances  by  persons  seised  juris  uxoris:—li\s  generally 
supposed  that  women,  by  reason  of  their  incapacity  to  perform  military  duty, 
were  not  originally  admitted  to  succeed  to  proper  fiefs :  so  that  if  the  fief,  by 

•  its  original  constitution,  were  descendible  to  the  females,  it  was,  upon  that  very- 
account,  ranked  among  improper  fiefs.  See  Craig  de  Jure  Feud.  48.  50.  236. 
Stry.  Ex.  Jur.  Feud.  cap.  4.  2.  cap.  15.  2.  3.  By  the  Salic  law,  the  females 
were  excluded  from  succeeding  to  estates,  either  lineally  or  collaterally.— It 
may  not  be  improper  to  mention  here,  that  there  are  two  different  codes  of  this 
law.  One  of  them  is  supposed  to  have  been  collected  before  Christianity  was 
received  into  France.— The  other  is  of  a  later  date ;  and  appears  to  be  a  repub- 
lication of  the  former,  with  considerable  alterations,  both  in  substance  and 
phraseology :  and  with  several  new  regulations  supposed  to  have  been  made 
by  the  princes  who  filled  the  throne  of  that  kingdom,  after  the  introduction  of 
Christianity.  The  former  code  contains  the  following  clause  :  "  De  terra  vero 
«  Salecd  in  mulierem  nulla  portio  hxreditatis  transit;  sed  lioc  virilis  sexus 

"  acquirit  f 


326.  a.]         Of  Discontinuance.     L.  3.  C.  11.  Sect.  594. 

(1  Roll.  Abr.  Aad  here  is  one  of  the  alienations  to  make  a  discontinuance, 

fj^'i-  viz.  a  feoffment ;  and  Avhere  our  author  speaketh  of  a  husband 

AaL  187.  b.)        seised  in  the  right  of  his  wife,  so  it  is  where  the  husband  and  wife 

are 

"  acquirit ;  hoc  ent,  Jilii  in  hxreditate  succedunt."  In  the  latter  it  is  expressed 
in  this  manner:  "Be  terra  autem  Salicd,  nidla  portio  hcereditatis  mulieri 
**  veniat  sed  ad  virilem  sexum  tola  ha'reditas pervcniat."  But  in  the  course  of 
time,  women  were  admitted,  generally,  to  succeed  to  all  fiefs;  and  even  the  Salic 
law  lost  all  its  force,  except  as  to  the  succession  to  the  crown,  in  which  respect 
it  has  been  invariably  observed  from  the  earliest  period  of  the  French  monarchy 
to  the  present  time.  This  exclusion  of  females  and  their  descendants  from  the 
crown,  is  now  universally  agreed  to  be  a  fundamental  law  of  that  monarchy. — 
Even  in  the  dispute  between  Philip  Valois  and  Edward  the  Third,  the  validity 
of  the  law  as  to  the  daughters  themselves,  was  never  questioned  :  the  only  dispute 
was,  whether  it  extended  to  the  male  descendants  of  the  daughters.  Edward  the 
Third  contended  it  did  not;  but  the  decision  of  the  assembly  which  was  held 
upon  this  aiFair  at  Paris,  and  which  was  composed  of  the  chief  nobility,  pre- 
lates, and  burghers  of  the  kingdom,  being  against  him ;  and  the  wars  which 
were  undertaken  in  support  of  his  right,  proving  unfavourable  to  the  English  ; 
it  is  now  settled  beyond  all  controversy,  that  the  descendants  of  the  daughters 
are  excluded  from  (he  throne  of  France,  as  much  as  the  daughters  themselves. 
In  consequence  of  this  doctrine,  Henry  the  IVth  succeeded  to  the  throne  at 
the  distance  of  twenty-one  degrees  from  his  immediate  predecessor.  See 
Rapin's  Dissertation  on  the  Salic  Law,  and  Le  Brun  Traite  des  Successions,  I. 
2.  c.  2.  §  2.--^This  exclusion  from  the  throne  of  France  did  not  prevent  women 
succeeding  there  to  every  other  dignity,  so  as  even  to  become  peers  of  France. 
Many  instances  are  upon  record  of  their  personally  presiding  in  their  own 
courts,  even  over  judicial  combats;  of  their  being  summoned  to,  and  sitting 
in,  the  court  of  peers;  and,  what  is  considered  as  the  highest  of  honours,  of 
their  assisting  as  peers  at  the  consecration  of  the  king.  Thus  Mahaut,  the 
countess  of  Avtois,  assisted  not  only  at  the  trial  of  Robert  of  Flanders,  but  at 
the  ceremony  of  the  coronation  of  Philip  the  Long,  and  with  the  other  peers 
supported  his  crown.  So,  in  England,  the  celebrated  Ann  countess  of  ]?em- 
broke,  Dorset,  aud  Montgomery,  had  the  office  of  hereditary  sheriff  of  West- 
moreland, and  exercised  it  in  person.  At  the  assizes  at  Appleby,  she  sat  with 
the  judges  on  the  bench.  The  reader  will  find  the  revolutions  in  the  laws 
and  usages  of  France,  in  this  respect,  stated  with  the  most  consummate  learn- 
ing and  perspicuity  by  the  Chancellor  D'Aguesseau  (then  attorney-general)  in 
his  pleading  in  the  great  cause  of  the  duke  of  Luxemburgh,  tom.  3.  p.  643, 
and  in  his  Rcqiieste  sur  la  Moiivance  du  Comt6  de  Soissons,  tom.  6.  p.  1.  &  Ob- 
servations sur  les  Fairies,  torn.  7.  p.  598.  Proces  verbal  de  ce  que  s'esf  passe 
an  Parlement  de  Paris  en  1716,  au  sujet  cVun  accusation  de  duel,  intentee par 
le  Procureur  general  du  Roi  contre  tm  Pair  de  Prance,  qtii  n'avoit  pas  encore 
^te  recu  en  Parlement.  lb.  616 ;  and  see  also  Droit  Public  de  la  France,  par 
Mons.  Bouquet,  p.  332.  The  cause  of  the  duke  of  Luxemburgh  gave  rise  to 
the  edict  of  1711.  By  that  edict  it  was  declared,  that  in  the  letters  for  the 
erection  of  peerages,  whether  granted  before  that  time,  or  to  be  granted  after- 
wards, the  words  heirs  and  successors  should  only  comprise  male  children, 
descended  from  him  in  whose  favour  the  peerage  was  first  erected,  and  males 
descended  from  males,  without  the  intervention  of  a  female :  That  those 
clauses,  which  expressly  comprised  females,  should  be  considered  as  having  a 
condition  annexed  to  them,  that  the  female  becoming  entitled  under  them, 
shooLl  marry  no  person  without  the  consent  of  the  king,  signified  by  letters 
patent  addressed  to  the  parliament  of  Paris :  That  in  these  letters  patent  the 
peerage  should  be  confirmed  to  the  husband,  and  his  male  descendants;  and 
ihat  the  peer  in  whose  fiivour  the  peerage  of  his  wife  was  thus  confirmed,  should 

take 


L.  3.  C.  11.  Sect.  594.        Of  Discontinuance.        [326.  a. 

are  joyntly  seised  to  them  and  their  heires  of  an  estate  made  ^^j*^""' ^J^  ^. 
during  the  coverture,  and  the  husband  make  a  feoifraent  in  fee,  ^^g^    3  ^'j|^' 
and  dieth,  the  wife  now  may  enter  within  that  statute,  although  Dier,  191. 

Lib.  8.  fol.  71,  72.     Greveleye's  case.      ('J  Rep.  140.  a.)      Greveleye's  ease,  ubi  supra. 

(2  Inst.  343.) 

it 


take  his  rank  only  from  the  day  of  his  reception  in  parliament,  under  the  letters 
patent.  In  the  same  manner  the  duchy  and  peerage  of  Aubigny  was  granted 
in  1G84,  to  the  duchess  of  Portsmouth,  the  duke  of  Richmond  her  son,  and 
his  heirs  male;  but  the  letters  patent  by  which  this  grant  was  made,  were  not 
registered ;  for  want  of  which,  though  the  title  of  duke  of  x\ubigny  had  always 
been  admitted  by  the  court  of  France,  and  the  dukes  and  duchesses  of  Rich- 
mond had  always  been  allowed  at  Versailles  the  honours  attached  to  that 
dignity,  the  peerage  was  not  admitted  by  the  parliament.  In  1779,  his  grace 
the  then  duke  of  Richmond  obtained  letters  patent,  confirming  those  of  1G84, 
but  with  a  clause  that  neither  his  grace,  nor  any  of  the  heirs  male  of  his  grand- 
father the  first  duke  of  Richmond,  should  be  received  in  parliament,  until  the 
possessor  should  be  of  the  religion  and  reside  in  the  kingdom  of  France ;  and 
that  the  rank  of  the  peerage  should  take  place  from  the  date  of  the  reception. 
These  last  letters  patent  have  been  duly  registered ;  but  his  grace's  rauk_  and 
precedence  were  not  to  begin  till  his  reception.  In  the  mean  time,  the  registry 
of  the  peerage  in  parliament  was  a  recognition  of  it,  and  entitled  his  grace  to  all 
the  other  advantages,  honours,  and  privileges  annexed  to  the  dignity.  These, 
when  the  estate  is  considerable,  are  of  very  great  importance.  There  are  in 
France  other  peers,  whose  ancestors  have  neglected  to  be  received  in  parlia- 
ment, and  who,  being  unwilling  to  take  a  rank  lower  than  that  which  the  date 
of  their  peerage  would  give  them,  decline  to  be  received  there  now.  It  is 
said  the  due  de  Bouillon,  the  due  d'Elbeuf,  the  due  de  Montbazon,  and  the 
due  de  Valentinois,  were  in  this  predicament.  Some  of  them  claimed  to  be  older 
than  the  due  de  Usez,  who  by  his  ancestors  having  been  first  received,  is  now, 
in  fact,  the  first  duke  in  France. — Both  in  England  and  in  France  females 
originally  communicated  their  titles  and  dignities  to  their  husbands.  Many 
instances  of  this  are  to  be  found  in  the  arguments  on  the  claim  of  Mr.  Bertie 
to  the  barony  of  Willoughby.  But  this  has  long  since  ceased;  and  we  may 
apply  to  this  circumstance  the  remark  contained  in  the  former  part  of  this 
work,  respecting  curtesy  in  titles  of  honour,  that  from  the  late  creations,  by 
which  women  have  been  made  peeresses  in  order  that  the  issue  of  their  hus- 
bands might  have  titles,  yet  the  husbands  themselves  continue  commoners,  it 
seems  that  this  right  in  women   to  communicate  peerages  to  their  husbands  is 

considered  as  extinct.      See  ant.  29.  b.  not.  1. But  though  by  our  law  a 

woman  does  not  now  communicate  her  rank  or  titles  of  honour  to  her  husband, 
yet  the  freehold,  or  the  right  of  possession,  of  all  her  lands  of  inheritance,  vests 
in  him  immediately  upon  the  marriage,  the  right  of  property  still  being  pre- 
served to  lier.  1  Inst.  ool.  a.  273.  b.  And  see  Poihier  Traite  i/es  Ficfx,  vol.  1. 
p.  123.  This  estate  he  may  convey  to  another.  An  incorrect  statement  in 
the  book  called  Cases  in  Equity,  during  the  time  of  lord  Talbot,  fol.  167,  of 
what  was  delivered  by  his  lordship  in  the  case  of  Robinson  v.  Comyns,  seems 
to  have  given  rise  to  a  notion  that  the  husband  could  not  make  a  tenant  to  the 
priccipe  of  his  wife's  estate,  for  the  purpose  of  suffering  a  common  recovery  of 
it,  without  the  wife's  previously  joining  in  a  fine;  but  it  now  seems  to  be  a 
settled  point  that  he  can.  Mr.  Cruise,  in  his  Essay  upon  Recoveries,  p.  38, 
has  given  an  accurate  statement  of  lord  Talbot's  observations  upon  this  subject, 
which,  in  substance  and  almost  in  words,  is  agreeable  to  a  manuscript  report 
of  the  same  case,  in  the  possession  of  the  editor.  The  same  must  be  concluded 
from  general  reasoning. — For  the  interest  which  the  husband  takes  in  his 
wife's  chattels,  real  and  personal,  see  351.  a.  note. — [Note  280.] 


326.  a.]         Of  Discontinuance.      L.  3.  C.  11.  Sect.  594. 

it  was  the  inheritance  of  them  both.  And  so  it  is  if  the  feofFinent 
be  made  by  the  husband  and  wife,  (albeit  the  words  of  the  sta- 
tute be  by  the  husband  only)  for  in  substance  this  is  the  act  of 
the  husband  only  (1). 

If  the  husband  cause  a  pracipe  quod  reddat  upon  a  faint  title 
to  be  brought  against  him  and  his  wife,  and  suffereth  a  recovery 
without  any  voucher,  and  execution  to  be  had  against  him  and 
his  wife,  yet  this  is  holpen  by  the  statute ;  for  this  by  like  con- 
struction is  the  act  of  the  husband,  and  the  words  of  the  statute 
be,  made,  suffered,  or  done. 
(F.  N.  B.  205.  F.       If  the  husband  make  a  feoffment  in  fee  of  the  lands  which  he 

7  Rep.  42.  holdeth  in  the  right  of  his  wife,  and  after  they  are  divorced 
4  Rep.  29.)  causa  prcecontractus,  yet  the  woman  may  enter  within  the  pur- 
view of  that  statute,  and  is  not  driven  to  her  writ  of  cui  ante 
divortium,  as  she  was  at  the  common  law,  albeit  the  entrie  be  by 
the  statute  given  to  the  wife,  and  now  upon  the  matter  she  was 
never  his  lawfuU  wife.  But  it  sufficeth  that  she  was  his  wife  de 
facto  at  the  time  of  the  alienation,  and  where  her  husband  dieth 
she  cannot  be  his  wife  at  the  time  of  the  entrie. 

6  E.  6.  If  the  husband  levie  a  fine  with  proclamations,  and  dicth,  the 

Dier,  72.  b.  -j^ifg  must  enter,  or  avoid  the  estate  of  the  conusee  within  five 

4  H.  7.  c.  24.        yeares,  or  else  she  is  barred  for  ever  by  the  statute  of  4  H.  7, 
for  the  statute  of  32  H.  8.  doth  helpe  the  discontinuance  but  not 
the  barre  ;  and  the  statute  speaketh  of  a  fine,  and  not  of  a  fine 
with  proclamations. 
Greveleye's  If  lands  be  given  to  the  husband  and  wife,  and  to  the  heires  of 

case,  ubi  supra,    their  two  bodies,  and  the  husband  maketh  a  feoffment  in  fee  and 
fHo'b^'''6'l"^'^'^'      dieth,  the  wife  is  holpen  by  the  said  statute,  as  hath  beene  said, 
9  Rep.''l40.)        and  so  is  the  issue  of  both   their  bodies.     Feme  tenant  in  taile 
(Dyer,  224.  a.      takcth  husband,  the  husband  maketh  a  feoffment  in  fee,  the  wife 
3  Inst  216.)         before  entrie  dieth  without  issue,  he  in  the  reversion  or  remainder 
may  enter.     For,  first,  the  reversion  or  remainder  cannot  be  dis- 
continued  in  this  case,  because  the  estate  taile  is  not  discon- 
tinued.    Secondly,  the  words  of  the  statute  be,  shall  not  he  preju- 
dlciall  or  hurtfull  to  the  icife  or  her  heires,  or  such  as  shall  have 
right  title  or  interest  hy  the  death  of  such  wife,  hut  that  the  same 
wife  and  heires,  and  such  other  to   whom  siich  right  shall  ap- 
pertaine  after  her  decease,  shall  or  laicfully  may  enter  into  all  such 
mannors,  lands,  <i^c.  according  to  their  rights  and  titles  therein  , 
by  which  words  the  entrie  of  him  in  the  reversion  or  remainder 
in  that  case  is  preserved.     The  husband  is  tenant  in  taile,  the 
I'emainder  to  the  wife  in  taile,  the  husband  make  a  feoffment  in 
fee  ;  by  this  the  husband  by  the  common  law  did  not  only  discon- 
tinue his  owne  estate  taile,  but  his  wife's  remainder  :  but  at  this 
day  after  the  death  of  the  husband  without  issue,  the  wife  may 

8  E.  2.  tit.  Cui  enter  by  the  said  act  of  32  H.  8.  If  the  husband  hath  issue, 
34  E  'l  '  ^°d  maketh  a  feoffment  iu  foe  of  his  wife's  land,  and  the  wife 
ibidem,  30.  dieth,  the  heire  of  the  wife  shall  not  enter  during  the  husband's 


10  E.  3.  life   neither  by  the  common  law  nor  by  the  statute. 

12  Dier.  '  *'  "^ 

21  Eliz.  363. 


"  Cm 


(1)  But  a  fine  levied  both  by  husband  and  wife  of  her  lands  is  not  within 
the  statute ;  and  it  operates  as  a  bar  to  her  and  her  heirs  of  all  her  estate  and 
interest  in  the  land. — See  2  Rep.  57.  b.  77.  b. 


L.  3.  C.  11.  Sect.  595.  Of  Discontinuance.  [326.  a.  326.  b. 

"  Cui  in  vita,  &c."  Here  is  also  implied  a  sur  cui  in  vitd  also 
for  the  heire.  This  writ  here  mentioned  in  our  author  is  so  called 
of  those  words  contained  in  the  writ,  which  you  may  reade  in 
the  Register  and  Fitzherbert' s  N.  B. 


r396.-|  fi©»  Sect.  595. 

ALSO^  if  a  tenant  in  taile  of  certaine  land  thereof  enfeoffe  another, 
Src.  and  hath  issue  and  dieth,  his  issue  may  not  enter  into  the  land, 
albeit  he  hath  a  title  and  right  to  this,  but  is  put  to  his  action,  which  is 
called  a  formedoa  in  le  discender,  &c.  (1) 

"  TpjSfFEOFFE  another,  &c."     Here  is  implied,  or  make  a 
gift  in  taile  or  an  estate  for  life.     Here  Littleton  putteth  a 
third  example  of  a  discontinuance  made  by  tenant  in  taile  so  as  rieta,  lib.  5. 
his  issue  is  put  to  \n?,  formedon  in  the  discender,  which  is  given  S^^^P- ^^- 
to  the  issue  in  taile  by  the  statute  of  13  E.  1.  co/).  1,  because  he  212.'  Registr. 
cannot  enter.  (4  Rep.  3.  b. 

Post.  365,  b.) 
"  Tenant  in  taile."  This  extendeth  as  well  to  a  woman  tenant 
in  taile  as  to  a  man,  and  was  generally  good  law  when  Littleton 
wrote ;  but  now  by  the  statute  of  [rf]  11  i7.  7,  if  the  woman  hath  [d]  11  H.  7. 
any  estate  in  taile  joyntly  with  her  husband,  or  only  to  herselfe,  Y:J^'g^^^^  697. 
(3  Cro.  244.     1  Rep.  102.  b.     3  Rep.  Lin.  Coll.  Case.     10  Rep.  39.  b.     6  Rep. 
9.  b.  Bend.  40.     Hob.  332.     Jo.  31.     Cro.  El.  2.) 


(1)  IV.  As  to  discontinuances  hy  tenants  in  tail  with  respect  to  their  issue: — 
It  is  to  be  observed,  that  though  the  estate  of  the  tenant  in  taile,  as  to  his  right 
of  possession,  or  rather  as  to  his  beneficial  property  in  the  lands,  has  a  duration 
for  the  term  of  his  life  only  ;  yet,  in  the  eye  of  the  law,  he  is  considered  as 
seised  of  an  estate  of  inheritance.     To  understand  this,  it  should  be  remem- 
bered, that,  in  the  case  of  a  fee  simple  conditional  at  common  law,  the  con- 
dition, from  which  that  estate  took  its  appellation,  did  not  suspend  the  fee 
from  vesting  in  the  donee,  immediately  by  the  gift.     Tlius,  we  find,  that,  if  he 
aliened  before  he  had  issue,  it  not  only  was  no  forfeiture,  but,  if  afterwards  he 
had  issue,  it  was  a  bar  to  them.     See  Plo.  239.     2  Inst.  333.     But  the  con- 
dition, though  it  did  not  prevent  the  fee  from  vesting  in  the  donee,  suspended 
his  power  of  alienation.     To  that  power  it  was  considered  to  be  a  condition 
precedent,  that  the  donee  should  have  issue  born.     The  statute  extinguished 
the  power,  but  did  not  aff'ect  the  estate  of  the  feudatory  in  any  other  respect : 
so  that  the  tenant  in  tail  was  as  much  seised  of  the  inheritance,  after  the  statute 
de  donis,  as  a  tenant  in  fee  simple  conditional  was  before  it.     Hence,  if  he 
made  a  feoffment,  it  did  not,  during  his  life,  afiect  or  prejudice   the   issue. 
Thus,  his  alienation  was,  primarily,  a  lawful  transfer  of  the  freehold  ;  the  alienee 
came  in  by  right ;  and  his  estate  could  not  be  impeached  during  the  life  of 
the  donee.     In  conformity  to  the  established  rule  of  the  common  law,  that 
whenever  any  person  acquired  a  presumptive  I'ight  of  possession,  his  possession 
was  not  to  be  defeated  by  entry,  however  slender  or  unlawful  the  title  of  the 
grantor  himself  might  be,  the    statute    de  donis  did  not  absolutely  nullify 
the   alienations   of  the  donee   in  tail,  but  enabled  the  issue  to  defeat  them 
by  the  formedon  in  the  descender. — [Note  281.] 


326.  b.]      Of  Discontinuance.       L.  3.  C.  11.  Sect.  595. 

or  to  her  use  in  any  lands  or  hereditaments  of  the  inheritance  or 
purchase  of  her  husband,  or  given  to  the  husband  and  wife  in 
taile  by  any  of  the  ancestors  of  the  husband,  or  by  any  other 
person  seised  to  the  use  of  the  husband  or  his  ancestors,  and  shall 
hereafter  being  sole,  or  with  any  other  after-taken  husband,  dis- 
continue, &c.  the  same  :  every  such  discontinuance  shall  be  voyd  ; 
and  that  it  shall  be  lawfull  for  every  person  to  whom  the  interest, 
title,  or  inheritance,  after  the  decease  of  the  said  woman  should 
appertaine,  to  enter,  &c.  So  as  if  such  a  feme  tenant  in  taile 
doe  make  any  discontinuance  in  fee,  in  taile,  or  for  life,  although 
it  be  without  (A)  warrantie,  yet  this  doth  not  take  away  the 
entry  after  her  death,  either  of  the  issue  or  of  him  in  reversion  or 
remainder.  This  statute  hath  beene  excellently  expounded  by 
[c]  Lib.  3.  divers  resolutions  and  judgments  [c]  which  I  have  quoted  in  the 

fol.  50,  51.  margent,  and  are  worthy  of  due  observation. 

Sir  George  jf  lamJs  ^ere  entailed  to  a  man  and  to  his  wife,  and  to  the 

eo'drin  Ub!*^^^'  heires  of  their  two  bodies,  and  the  husband  had  made  a  feoffment 
fol.  60.  &c.  iu  fee  and  died,  and  then  the  wife  died,  this  had  beene  a  discon- 

Litic.  Coll.  Case,  tinuance  at  the  common  law  :  for  the  title  of  the  issue  is  as  heire 
Mil'de'iuaye's  '  of  both  theire  bodies,  and  not  as  heire  to  any  one  of  them,  and 
r-,\se.  his  entrie  must  ensue  his  title  or  action. 

Dier,  3  &  4 

Ll'om  S^El'iz^.^'''        "  A  formedon."  De  forma  donationis,  so  called  because  the 

24S.    17  Eliz.      writ  doth  comprehend  the  forme  of  the  gift.   And  there  be  three 

340.  Mem.  kinde  of  writs  of  formedon,  viz.    The  first  in  the  discender  to  be 

T^  ^^'%ft^wr,  brought  by  the  issue  in  taile,  which  claime  by  discent  «er/ormani 
iaein.  ZM  ii-iiz.  p  •J  ■,   •     -       ■,  i  •   i    t     i    ^       i  •       •      ii 

202.  doni.     The  second  is  in  the  reverter,  which  lieth  tor  liim  in  tne 

27  H.  8.  23.  reversion  or  his  heires  or  assigns  after  the  state  taile  be  spent. 

Lib.  5.  fol.  79.  rj j^    ^|^jj,^j  jg  ^j^^  remainder,  which  the  law  giveth  to  him  in  the 

Lib.  8.  fol.  71,72.  remainder,  his  heires  or  assignes,  after  the  determination  of  the 

Grevcleye's  estate  taile ;  of  all  which  you  may  reade  in  the  Register  and 

case.  F  N  B 

217.  8  Rep.  88.)  Here  Littleton  sheweth  that  the  issue  in  taile  shall  have  a 

formedon  in  the  discender.     What  other  actions  tenant  in  taile 

may  have,  and  not  have,  is  good  to  be  seene. 

[n]  4  E.  3.  38.  ["]  Tenant  in  taile  shall  have  a  quod  permit  tat. 

43  E.  3.  25.  r^]  Tenant  in  taile  shall  have  a  writ  of  customes  and  services 

^^- l-p  ^-  in  le  debet,  et  solet,  but  shall  not  have  it  in  the  debet  only, 

r/)'  2  E.  2^  *  T'^']  I^  li^<^  manner  he  shall  have  a  secta  ad  molendinum  in  le 

Droit,  28.  debet  et  solet,  but  not  in  the  debet  tantum. 

['vl  ^-  ^-  ^- 123.  j-^/j  Tenant  in  taile  shall  have  a  writ  of  entre  in  conxlmili cam, 

5  e"3  23       *  and  an  admesare^yient,  and  a  nativo  habendo,  cessavit,  escheat, 

11 II.  4.  49.  trasfe,  and  the  like. 

M  r  i'"-^^-  [r]  But  the  tenant  in  taile  shall  not  have  a  writ  of  right  sur 

1 '[  H '  7  24  disclaymer,  nor  a  q uo  jure,  nor  a  ne  injuste  vexes,  nor  a  n uper  obiit, 

5  E.  4.  2.  or  rationabile  p>arte,  nor  a  mordancester,  nor  a  sur  cui  in  vita  ; 

20  E.  3.     ^  f(^Y  these  and  the  like,  none  but  tenant  in  fee  shall  have  :  and  the 

r  N^B^'iif^  highest  writ  that  a  tenant  in  taile  can  have  is  a  formedon. 

46  E.  3.  tit.  Cui 
in  vita,  33. 

Sect. 

(A)  Here  "  mthout"  seetns  printed  by  mistake  instead  o/"with."  See  Mr.  Ritso's  Intr.  p.  121. 


L.  3.  C.  11.  S.  596,  597.     Of  Discontinuance.       [327.  a. 


397 

a. 


]  '  Jl^  Sect.  596. 


A  LSO,  if  there  bee  tenant  in  taile,  the  reversion  being  to  the  donor  and 
his  heires,  if  the  tenant  make  a  feoffment,  *  ^c.  and  die  without  issiie 
hee  in  the  reversion  cannot  enter,  but  is  put  to  his  action  of  formedon  in 
le  reverter  f (1). 

Sect.  597. 

TJSf  the  same  w.anner  is  it,  where  tenant  in  taile  is  seised  of  certaine  land 
ivhereof  the  remainder  is  to  another  in  taile,  or  to  another  in  fee  (En 
mesme  le  manner  est,  lou  tenant  en  le  taile  |  seisie  de  certaine  terre  dont 
le  remainder  est  a  un  auter  en  le  taile,  ou  a  un  auter  en  fee).  If  the 
tenant  in  taile  alien  in  fee,  or  infee-taile,  \\  and  after  die  without  issue, 
they  in  the  remainder  may  not  enter,  but  are  put  to  their  writ  of  formedon 
in  the  remainder,  ^c.{2),andfor  that  that  by  force  of  such  feoffments  and 

alienations 

*  &c.  not  in  L.  and  M.  or  Roh.  J  seisie  not  in  L.  and  M.  or  Roh. 

t  &c.  added  in  L.  and  M.  and  Roh.         ||  &c.  added  in  L,  and  M.  and  Roh. 

(1)  V.  As  to  alienations  hy  tenants  in  tail,  with  respect  to  the  reversioner : — 
Upon  the  death  of  tenant  in  fee  simple  conditional  without  issue,  if  the  estate 
was  withheld  from  the  reversioner,  either  by  the  alienee  of  the  tenant  in  tail, 
or  by  an  abator,  the  reversioner  was  entitled,  at  the  common  law  to  a  formedon 
in  the  reverter.  It  has  been  observed  before,  that  if  tenant  in  fee  simple  con- 
ditional at  the  common  law,  aliened  before  he  had  issue,  and  afterwards  had 
issue,  the  issue  was  barred  by  the  alienation ;  but  it  does  not  seem  clear  whe- 
ther the  alienation  in  that  case  barred  the  reversioner.  See  Plo.  235.  Ant.  19. — 
In  general,  when  the  ancestor  aliened,  it  was  with  warranty ;  in  that  case,  the 
warranty  descended  upon  the  issue  in  tail,  and  therefore  prevented  his  claim- 
ing against  the  alienation  of  his  ancestor.  But  nothing  of  this  nature  could  be 
opposed  to  the  reversioner. — [Note  282.] 

(2)  VI.  As  to  discont in  nances  by  tenants  in  tail,  with  respect  to  those  in 
remainder  : 

I.  It  has  been  observed  before,  that  all  estates  of  inheritance  were,  at  com- 
mon law,  either  fees  simple  absolute,  or  fees  simple  conditional ;  and  that 
tenants  in  fee  simple  conditional  were,  after  the  birth  of  issue,  permitted  to 
alien  the  fee,  upon  a  suppn.sition,  that,  by  the  birth  of  issue,  the  condition  was 
performed.  The  statute  dc  c/oh/s  declared  this  to  be  manifestly  contrary  to  the 
form  and  intent  of  the  gift,  and  therefore  required  that  thenceforth  the  will 
and  intent  of  the  donor  should  be  observed,  and  the  fee  revert  to  him,  for  want 
of  issue.  This  statute  did  not  create  any  new  estate,  but  by  disaffirming  the 
supposed  performance  of  the  condition,  preserved  the  fee  to  the  issue,  while 
there  was  issue  to  take  it,  and  the  reversion  to  the  donor  when  the  issue 
failed.  An  estate  of  inheritance  therefore  remained  in  the  donee  ;  but  only  a 
particular  description  of  heirs  being  entitled  to  take  under  it,  it  received  the 

appellatioa 


327.  a.]  Of  Discontinuance.     L.  3.  C.  11.  Sect.  597. 

alienations  in  the  cases  aforesaid.,  and  the  like  cases  (en  les  cases  avantdits 
et  en  semblables  §  cases,)  they  that  have  title  and  right  after  the  death  of 

such 

§  auters  added  in  L.  and  M.  and  Roh. 


appellation  of  an  estate  tail,  that  is,  an  estate  docked,  cut  off,  or  abridged,  in 
contradistinction  from  the  estate  in  fee  simple  absolute,  which  remained  in  the 
donor.  Wright's  Tenures,  18G.  Plo.  251.  The  expression  estate  tail  docs 
not  occur  in  the  statute  de  donis  ;  but  it  is  to  be  found  in  a  statute  of  the  same 
year.  See  Stat.  West.  cap.  4.  The  statute  de  donis,  by  thus  securing  the 
reversion  to  the  donor,  produced  another  material  alteration  in  the  law.  For, 
by  the  common  law,  no  remainder  could  be  limited  upon,  or  after,  an  estate  in 
fee  simple  absolute  or  conditional ;  but,  when  estates  in  fee  simple  conditional 
were  reduced  to  estates  tail,  remainders  after  them  were  permitted :  and,  by 
analogy  to  what  was  done  for  the  issue  and  the  reversioner,  a  formedon  in  the 
remainder  was  given  to  the  remainder-man; — not,  however,  expressly,  but  by 
inference. — For  the  remainder-man  after  an  estate  tail  being  by  the  discon- 
tinuance in  the  same  mischief  with  the  issue  or  the  reversioner  in  tail,  an 
equitable  constructiim  of  the  statute  brought  him  within  the  like  remedy. — 
Five  years  after  the  enacting  of  the  statute  da  donis,  the  statute  quia  emptores 
terrarnm  was  passed ;  by  which  all  persons  were  enabled  to  dispose  of  their 
binds;  but  the  feoffees  were  to  hold  them  immediately  of  the  chief  lord.  Upon 
this  statute,  the  courts  took  the  following  distinction,  with  respect  to  estates 
tail,  and  other  particular  estates ;  that,  where  a  person  seised  in  fee  granted 
for  life,  or  in  tail,  reserving  the  reversion  to  himself,  the  grantees  of  the  par- 
ticular estates  held  of  the  reversioner,  and  he  of  the  chief  lord  ;  but,  where 
a  person  granted  for  life,  or  in  tail,  with  the  remainder  over  in  fee,  both  the 
tenant  of  the  particular  estate,  and  the  remainder-man,  held  of  the  chief  lord. 
2  Inst.  505. 

II.  Care  must  be  taken  to  distinguish  between  a  remainder  limited  after  an 
estate  tail,  and  a  conditionaU,  or  contingent  use,  limited  upon  or  after  such  an 
estate.  See  page  203.  b.  note  1,  and  page  272.  a.  note  1.  V.— There  are 
few  occasions  where  greater  nicety,  or  skill,  is  required,  in  limiting  uses_  of 
this  kind,  than  in  the  two  following  cases. — The  first  is,  when  a  person,  being 
seised  of  two  estates,  wishes  to  raise  two  families;  and,  with  this  view,  intends 
that  one  of  the  estates,  (which  shall  be  called  here  the  family  estate,)  shall  be 
settled  on  his  eldest  son  and  his  issue ;  and  for  want  of  such  issue  on  his 
younger  sons,  successively,  and  their  respective  issue;  and,  that  the  other 
estate,  (which  shall  be  called  here  the  second  estate),  shall  be  settled  on  his 
second  son,  and  his  issue;  and  for  want  of  such  issue,  on  his  other  subsequent 
sons  successively,  and  their  respective  issue.  In  this  case,  by  the  death  of 
the  eldest  son  without  issue,  the  family  estate  would  descend  on  the  second 
son  or  his  issue.  This  union  of  the  two  estates  would  effectually  defeat  the 
settler's  inteution.  To  guard  against  it,  therefore,  it  is  necessary  to  provide, 
that,  if  by  the  death  of  the  first  son,  and  failure  of  issue  of  his  body,  the  family 
estate  descends  upon  the  second  son,  or  any  other  younger  son,  or  any  issue 
of  their  bodies,  the  second  estate  shall,  in  that  case,  shift  from  the  person  upon 
whom  the  family  estate  descends,  to  the  person  next  in  remainder. — The  other 
case  is,  when  a  person  limits  his  estate  in  strict  settlement  with  an  injunction 
that  the  several  persons  taking  under  the  settlement  shall  use  his  name  and 
bear  his  arms.  These  being  cases  of  difficulty,  the  rules  of  law  respecting  them 
not  having  been  long  settled  ;  and  the  forms  for  carrying  them  into  execution 
being  in  general  very  imperfect;  the  following  observations,  it  is  imagined,  may 

be  properly  introduced  here. 

II.  1.  As 


L.  3.  C.  11.  Sect.  597.     Of  Discontinuance.       [327.  a. 

such  a  feoffor  or  alienor  may  not  enter,  hut  are  put  to  their  actions,  ut 
supra ;  and  for  this  cause  such  feoffments  and  alienations  are  called 
discontinuances. 

II.  1.  As  to  clauses  for  shifting  the  second  estate,  on  the  accession  of  the 
family  estate.  From  what  has  been  said  before,  it  is  elear  that  the  provisoes 
and  injunctions,  in  these  cases,  are  shifting  or  secondary  uses ;  and  the  point 
now  before  us  presents  us  with  a  curious  and  striking  view  of  the  gradual  pro- 
gress of  the  doctrines  of  our  courts  respecting  them. — One  of  the  most  remark- 
able adjudications  on  this  subject  is  the  duke  of  Norfolk's  case,  3d  Ca.  in  Cha.  1. 
The  case  there  was,  that  Henry  earl  of  Arundel  conveyed  his  estates  to  the  use 
of  himself  for  his  life  ;  and,  after  his  decease,  to  the  use  of  trustees  for  200 
years  j  and,  after  the  expiration  of  that  term,  to  the  use  of  Henry  Howard, 
his  second  son,  in  tail  male;  remainder  to  Charles  Howard,  and  his  other  sub- 
sequent sons,  successively,  in  tail  male ;  with  a  declaration  that  the  term  of 
200  years  was  limited  in  trust  to  attend  the  inheritance,  so  long  as  Thomas 
Howard,  the  settler's  eldest  son,  or  any  issue  male  of  his  body  should  live ) 
but  with  a  proviso,  that  if  by  his  death  without  issue  male  living  at  his  decease, 
or  by  a  subsequent  failure  of  that  issue  male,  the  earldom  of  Arundel  should 
descend  on  the  second  son,  then  the  trust  should  cease  as  to  the  second  son, 
and  the  heirs  male  of  his  body ;  and  the  trust  should  then  be  for  the  benefit 
of  the  third  son,  and  the  heirs  male  of  his  body.  The  eldest  son  died  without 
issue,  in  the  life-time  of  the  second  son ;  upon  this  the  difficulty  arose.  The 
question  was,  whether  the  executory  trust  for  the  benefit  of  the  third  son  was 
not  too  remote  ?  It  is  clear,  that  the  event  upon  which  the  trust  was  to  take 
effect  for  the  benefit  of  the  third  son,  must,  if  it  took  place  at  all,  necessarily 
take  place  within  the  compass  of  one  life ;  it  being,  that  by  event  of  the  death 
and  failure  of  issue  of  the  first  son  in  the  second  son's  life-time,  the  second  son 
should  become  entitled  to  the  earldom  of  Arundel.  The  law  upon  this  head  is, 
now,  so  clearly  settled,  that  if  a  settlement  were  to  be  made  now  to  this  efi"ect, 
all  the  parties  interested  would  immediately  acquiesce  iu  it.  But  it  was  then 
a  point  so  much  questioned,  that  few  cases  have  been  heard  in  the  courts, 
either  of  law  or  equity,  in  which  there  has  been  a  greater  difference  of  opinion. 
Lord  Nottingham,  before  whom  it  was  heard,  was  assisted  by  the  three  chief 
justices.  His  lordship  held  the  trust  to  be  good.  But  the  three  chief  justices 
differed  from  his  lordship;  and  his  lordship's  decree  was  afterwards  reversed 
by  lord  keeper  North  :  but  the  house  of  lords,  on  appeal,  reversed  the  reversal ; 
and  affirmed  lord  Nottingham's  decree.  Thus,  by  this  case,  it  was  solemnly 
adjudged,  that  an  executory  trust  of  a  term  of  years  was  good,  if  so  framed 
as  to  take  effect  within  the  compass  of  one  life  in  heing.  This  reasoning 
extended,  by  analogy,  to  executory  devises  of  legal  estates;  and  to  all  shifting 
and  secondary  uses,  whether  created  by  deed,  or  will. — The  next  advance  in 
limitations  of  this  nature  was  to  extend  them  to  a  period  within  the  compass 
of  one  or  more  life  or  lives  in  being,  and  twenty-one  years  after.  Upon  this 
principle  was  determined  the  case  of  Lloyd  v.  Carcw,  Free,  in  Cha.  72.  Show. 
Cases  in  Par.  137. 

In  most  cases,  till  the  middle  of  the  last  century,  the  clauses  in  deeds  or 
wills  by  which  these  purposes  were  intended  to  be  effected  were  framed  upon 
this  plan  ;  so  that  the  event  upon  which  the  estate  limited  to  the  second  son 
was  to  shift  from  him  and  his  issue  to  the  subsequent  sons  and  their  issue,  viz. 
the  accession  of  the  family  estate  was  confined  to  the  contingency  of  its  hap- 
pening within  the  above  period  of  one  or  more  life  or  lives  in  being,  and 
twenty-one  years.  Afterwards,  as  it  was  observed  that  a  common  recovery 
suffered  by  tenant  in  tail  barred  all  limitations  subsequent  or  collateral  to  his 

estate, 


327.  a.]         Of  Discontinuance.     L.  3.  C.  11.  Sect.  597. 

(F.  N.  B.  215.)     "  AJAKE  a  feoffment,  d'c."     Here  is  implied  fee  simple,  fee 

taile,  or  estate  for  life  ;  aud  in  this  aud  the  next  Section 

Littleton  putteth  two  cases,  where  if  the  issues  in  taile  faile,  they 

in 


estate,  it  was  concluded,  that  there  was  no  necessity  to  confine  the  event,  upon 
which  the  estate  was  to  shift,  to  any  particular  period  of  time;  and  therefore 
it  is  now  usual  to  express  it  generally,  that  if  any  of  the  younger  sons,  or  of 
the  heirs  male  of  their  bodies,  shall  come  into  possession  of  the  family  estate, 
(without  limiting  the  period,  when  t#is  happeus  to  any  particular  time,)  the 
second  estate  shall  shift  from  the  person  so  becoming  entitled  to  the  family 
estate,  and  go  to  the  persons  next  entitled  in  remainder.  An  instance  of  this 
kind  may  be  seen  in  an  act  of  parliament,  passed  in  the  year  1758,  intituled, 
'^An  Act  to  enable  Charles  Bagot,  now  called  Charles  Chester,  and  his  so7is,  to 
"  take  the  surname  of  Chester." 

In  clauses  of  this  nature  so  many  circumstances  deserve  minute  attenticm 
and  accurate  expression,  as  to  render  it  a  clause  of  singular  nicety. — 1st.  The 
event  in  ichich  the  shifting  clause  is  to  have  effect,  should  be  accurately  described. 
A  general  direction," that  it  shall  have  effect,  on  the  party's  accession  to  the 
family  estate,  may  be  contended  not  to  apply  to  the  event  of  his  succeeding 
to  a  proportion  of  it,  however  large;  nor  to  the  event  of  his  succeeding  to  the 
whole,  if  it  be  charged  with  an  incumbrance,  to  which  it  was  not,  in  fact  or  in 
contingency,  liable,  when  the  settlement  was  framed ;  nor  to  the  event,  where 
the  party  accedes  to  the  family  estate,  not  under  the  instrument  to  which  the 
clause  refers,  but  by  a  subsequent  and  independent  instrument,  or  by  act  of 
law;  as  when  the  eldest  son  suflFers  a  recovery,  and  dies  without  issue  and 
intestate,  or  settles  the  family  estate  on  his  next  brother.  In  the  former  of 
these  cases  the  next  brother  would  take  by  heirship  to  his  eldest  brother ;  in 
the  latter  he  would  take  under  a  conveyance  from  him ;  and  he  would  take  in 
neither  (at  least  immediately),  by  the  instrument  containing  the  clause.  The 
clause,  therefore,  should  be  so  framed  as  to  describe  the  events,  in  which  it  is 
to  operate,  and  prevent  its  operation  in  other  events. — 2dly.  The  clause  should 
describe  accurately  ichat  estates  or  interests  the  younger  brother  solely,  or  both 
the  younger  brother  and  his  issue  male,  are  to  take,  in  the  family  property,  so 
as  to  give^to  the  clause  the  eifect  of  making  the  second  estate  shift  from  them. 
— When  the  property  is  included  in  a  particular  deed,  and  the  party  is  to  take 
it  according  to  the  terras  of  that  deed,  this  may  be  easily  described  ;  but,  where 
this  is  not  the  case,  it  is  frequently  difficult  to  frame  the  clause  in  such  a  man- 
ner, as  will  ascertain,  with  precision,  the  events  to  which  the  clause  is  intended 
to  apply. — 3dly.  Equal  attention  must  be  observed  in  describing  the  person  to 
whom  fhe  settler  wishes  the  second  estate  to  devolve  when  the  party  accedes 
to  the  family  estate.  It  sometimes  happens  that,  in  the  case  proposed  in  this 
annotation,  the  settler  directs  that  on  the  accession  of  any  of  the  subsequent 
tenants  for  life  to  the  family  estate,  the  second  estate  shall  devolve  to  the 
person  next  entitled  in  remainder.  Now,  in  the  case  proposed,  the  person  next 
entitled  in  remainder  is  the  son  of  the  tenant  for  life,  or,  (where  such  a  limi- 
tation is  introduced,)  the  trustees  for  preserving  the  contingent  remainders. 
To  one  or  other  of  these  the  limitation,  worded  in  the  manner  which  has  been 
mentioned,  has,  in  some  adjudged  cases,  been  held  to  carry  the  estate.  But 
this,  almost  always,  is  contrary  to  the  intention  of  the  settler,  as  he  generally 
wishes  that  the  estate  shifted  should  not  devolve  to  the  trustees,  or  to  the  issue 
of  the  son,  from  whom  it  shifts,  but  vest  in  the  next  son.  This,  therefore,  should 
be  provided  for.— 4thly.  The  clause  should  also  direct  to  whom  the  second 
estate  should  devolve,  if,  at  the  time  of  its  shifting,  the  person  to  whom  it  is 
limited  is  not  in  existence,  but  may  afterwards  come  m  esse.  As,  where  au 
estate  is  limited  to  the  sons  of  L  S.,  (a  person  in  existence,)  successively  in 

tail 


L.  3.  C.  11.  Sect.  597.     Of  Discontinuance.  [327.  a. 

in  the  reversion  and  remainder  are  driven  to  their  formedon  in 
reversion  or  remainder;  and  this  remaineth  as  it  was  when 
Littleton  wrote,  not  altered  by  any  statute.     And  the  reason 

whereof 

tail  male  with  a  clause,  directing  that,  on  the  accession  of  any  son  of  /.  S.  to 
a  particular  estate,  the  lands  in  settlement  shall  devolve  to  the  next  son  of  /.  S.  ; 
and  while  /.  >S.  is  living,  and  has  one  son  only,  that  son  accedes  to  the  estate. 
It  is  proper  to  provide  for  this  case,  by  directing  who  is  to  be  entitled  to  the 
estate,  while  there  shall  be  a  possibility  of  a  subsequent  son,  but  the  existence 
of  such  subsequent  son  shall  be  in  suspense. — 5thly.  In  many  cases  it  is  neces- 
sary to  jrrovic/e  for  the  retnrne  of  the  2^rop€rfy  to  a  person  from  whom  it  has 
been  divested  by  the  shifting  clause.  As  when  a  person  settles  his  family 
estate  on  himself  for  his  life,  with  successive  remainders  to  each  of  his  sons  A. 
B.  C.  and  D.  in  the  order  of  his  birth,  with  remainders  over  to  the  sons  of 
each  of  them  successively  in  tail  male  ;  and  settles  a  second  estate  on  himself 
for  life,  with  successive  remainders  over  to  each  of  his  sons  B.  C.  and  D.  in 
the  order  of  his  birth,  with  remainders  to  the  sons  of  each  successively  in  tail 
male,  with  remainder  to  A.  his  eldest  son  for  life,  with  remainders  to  his  sons 
successively  in  tail  male,  with  ulterior  remainders  to  the  collateral  branches  of 
his  family  ;  and  with  a  clause  divesting  the  second  estate  from  B.  G.  or  D.  and 
their  respective  issue  male,  on  their  respectively  acceding  to  the  family  estate. 
On  the  death  of  A.  without  issue  male,  B.  would  accede  to  the  family  estate, 
and  the  second  estate  would  therefore  shift  from  him.  Now,  if  6'.  and  D. 
should  die  without  issue  male,  the  second  estate  would  devolve  to  the  collateral 
branches  of  the  family,  under  the  ulterior  limitations.  But  it  could  not  be  the 
intention  of  the  settler  that  this  should  take  place  while  there  should  be  issue 
male  of  his  own  body.  To  obviate  these  and  other  incongruities  of  a  similar 
nature,  the  shifting  clause  should  be  so  framed  as  not  to  take  effect  unless 
C.  or  D.  or  some  issue  male  of  their  bodies  should  be  living,  when  B.  accedes 
to  the  family  estate ;  and  so  as  to  provide,  that,  if  the  second  estate  shall 
have  shifted,  and  C.  and  D.  shall  afterwards  die  without  issue  male,  the  second 
estate  shall  again  revert  to  B.  and  his  issue  male  according  to  the  original  limi- 
tations. Still  nicer,  and  not  improbable,  cases  may  be  easily  supposed  in  such 
shifting  clauses. 

II.  2.  As  to  clauses  enjoining  persons,  to  ichom  estates  are  limited  in  strirt 
settlement,  to  take  the  name  and  use  the  arms  of  the  settler.  This,  in  some 
respects,  is  nicer  than  the  former  clause ;  because,  in  the  former  clause,  the 
intention  of  the  settler  generally  is,  that  the  second  estate,  upon  the  accession 
of  the  family  estate,  shall  pass,  not  only  from  the  person  himselfe  upon  whom 
the  family  estate  descends,  but  from  his  issue,  but,  in  the  case  now  under  con- 
sideration it  generally  is  not  the  intention  of  the  settler  that  the  issue  shall  be 
prejudiced  by  the  non-compliance  of  his  parent  with  the  condition  or  requisi- 
tion annexed  to  his  estate.  Now  suppose  an  estate  is  limited  to  A.  for  life, 
remainder  to  trustees  and  their  heirs,  during  his  life,  to  preserve  the  contingent 
remaindei's,  remainder  to  A.'s,  sons  successively  in  tail  male ;  with  a  proviso, 
enjoining  A.  and  his  sons,  and  the  heirs  male  of  their  bodies,  when  they  become 
seised  in  possession  of  the  estate,  to  take  the  name  and  bear  the  arms  of  the 
settler,  otherwise  the  estates  limited  to  them  to  determine:  in  this  case,  if  A. 
the  first  taker  should  not  comply  with  the  condition  or  requisition  annexed 
to  his  estate,  before  the  birth  of  a  son,  his  estate  would  determine,  and  the 
contingent  remainders  limited  to  his  sons  would  either  be  void,  or  be  pre- 
served by  the  limitation  to  the  trustees.  The  former  would  be  entirely  con- 
trary to  the  intention  of  the  settler:  the  latter  also  would  be  contrary  to  his 
intention,  so  far,  as  by  the  words  usually  inserted  in  limitations  of  this  nature, 
the  person  refusing  to  comply  with  the  condition,  would  be  entitled  to  the 
rents  of  the  estate  during  his  life;    and,  if  those  words  were  not  inserted, 

the 


327.  a.]        Of  Discontinuance.      L.  3.  C.  11.  Sect.  597. 

whereof  these  alienations  in  the  severall  cases  in  this  and  the 
next  Section  doe  make  a  discontinuance,  and  put  him  in  the 
reversion  or  remainder  that  right  had  to  his  action,  and  tooke 

away 

the  rents  being  undisposed  of,  would  belong  to  the  heir  at  law  of  the  settler. 
To  prevent  this,  it  is  proper  to  direct,  that  the  trustees  for  preserving  the  con- 
tingent remainders  shall,  after  the  cessor  or  determination  of  the  estate  for  life, 
and  during  the  suspense  and  contingency  of  the  then  next  expectant  remainder 
stand  and  be  seised  of  the  estate  limited  to  them  ;  in  the  first  place,  to  pre- 
serve the  contingent  remainders  till  they  come  in  esse;  and  in  the  next  place, 
during  the  suspense  of  such  remainder,  upon  trust  to  pay  the  rents  to  those, 
who  would  be  entitled  to  the  estate,  if  the  persons  taking  under  the  contingent 
remainders  then  in  suspense  were  dead.  It  may  not,  perhaps,  be  unacceptable 
to  the  reader  to  be  presented  with  the  following  clauses,  in  which  all  the 
above  circumstances  seem  to  be  attended  to.  It  must  be  supposed,  that  the 
the  estate  is  previously  limited  to  ^.  (a  feme  sole,)  for  her  life,  with  a  power  to 
limit  a  rent-charge  to  any  person  whom  she  may  marry,  for  his  life,  with  a  limi- 
tation to  C.  and  D.  and  their  heirs  during  her  life,  to  preserve  the  contingent 
remainders ;  remainder  to  her  sons  successively  in  tail  male ;  remainder  to  her 
daughters,  as  tenants  in  common  in  tail,  with  cross  remainders  in  tail  between 
them  ;  with  several  remainders  over  ;  then  the  proviso  in  question  immediately 
follows  :  "  Provided  always,  and  it  is  hereby  agreed  and  declared  between  and 
''  by  the  parties  to  these  presents,  that  the  person  or  persons,  whom  the  said 
"  A.  shall  marry,  and  every  person,  who  by  virtue  of  the  limitations  herein- 
'^  before  contained,  or  of  this  proviso,  shall  become  entitled  to  the  possession, 
"  or  to  the  receipt  of  the  rents  and  profits  of  the  manors  and  other  heredita- 
"  ments  hereby  released,  or  expressed  and  intended  so  to  be,  shall  and  do, 
"  within  the  space  of  one  year  next  after  they  respectively  shall  so  marry,  or 
"  so  become  entitled  to  the  possession,  or  to  the  rents  and  profits  of  the  said 
"  manors  and  other  hereditaments  as  aforesaid,  take  upon  him  and  them  re- 
"  spectively,  and  use  in  all  deeds,  letters,  accounts,  and  other  writings,  to  or 
"  in  which  they  respectively  shall  be  party,  or  parties,  or  which  they  respectively 
"  shall  sign,  the  surname  of  Browne  only,  and  take  and  use  no  other  sur- 
"name;  and  quarter  the  arms  of  Browne,  with  their  owne  respective  family 
"  arms  ;  and  also  shall  and  do,  within  the  space  of  one  year  next  after  they 
''  respectively  shall  so  marry,  or  so  become  entitled,  as  aforesaid,  apply,  sue 
"  for,  and  endeavour  to  obtain  an  act  of  parliament,  or  a  proper  license  from 
"  the  crown,  or  take  such  other  means  as  may  be  requisite  or  proper  to  enable 
''  or  authorize  him,  or  them,  respectively,  to  take  and  bear  the  said  surname 
"  and  arms :  and  that  in  case  any  such  person  and  persons  shall  refuse  or 
"  neglect  to  take  such  surname  and  arms,  and  to  take  and  use  the  steps,  or 
"  means,  which  shall  be  requisite  or  proper  to  enable  and  authorize  him  or 
''  them  so  to  do,  within  the  said  space  of  one  year, — then,  if  the  person  so 
"  refusing  or  neglecting  shall  be  the  husband  of  the  said  A.  the  limitation 
''  hereinbefore  contained  to  the  use  of  the  said  A.  shall  cease,  determine,  and 
"  be  utterly  void  ;  and  any  annual  sum,  which  by  virtue  of  the  power  for  that 
"  purpose  hereinbefore  contained,  the  said  A.  shall  limit  or  appoint,  to  the 
"  use  of,  or  in  trust  for,  or  for  the  benefit  of  such  husband  so  refusing  or 
"  neglecting,  and  the  powers,  or  remedies,  and  terms  of  years  which  she  shall 
"  limit,  or  create  for  securing  the  same,  shall  cease,  determine,  and  become 
"  utterly  void ;  and  that  if  the  person  so  refusing  or  neglecting  shall  be 
"  any  other  than  the  husband  of  the  said  A.  the  limitations  hereinbefore  cou- 
"  tained  of  the  said  manors  and  other  hereditaments,  to  the  use  of  him  or 
''  them  so  refusing,  or  neglecting,  shall  cease,  determine,  and  become  utterly 
<^  void  :  and  that  the  said  manors,  and  other  hereditaments,  shall,  in  such 
"  cases,  immediately  thereupon,  devolve  to  the  person  next  beneficially  entitled 

in 


L.  3.  C.  11.  Sect.  597.      Of  Discontinuance.        [327.  a. 

away  his  entry,  was,  for  that  he  was  privy  in  estate,  and  for  the  ViJo  Sect.  592. 
benefit  of  the  purchaser,  and  for  the  safeguard  of  his  warrantie,  ^9''-  *'0i-  637, 
so  as  every  man's  right  might  be  preserved,  viz.  to  the  demandant  ,p  'j^  ^  217  b.) 
for  his  ancient  right,  and  to  the  feoffee  for  the  benefit  of  his  (8.  Rep.  3.) 

warrantie, 


in  remainder,  under  the  limitations  hereinbefore  contained,  in  the  same  man- 
ner, as  if  the  person  or  persons  whose  estate  shall  so  cease,  determine,  and 
become  voide,  being  tenant  or  tenants  for  life,  was  or  were  dead,  or  being 
tenant  or  tenants  in  taile,  was  or  were  dead  without  issue  inheritable  under 
such  entail; — without  prejudice,  nevertheless,  to  any  jointure  or  jointures, 
portion  or  portions,  annual  sum  or  annual  sums  of  money,  leaise  or  leases, 
or  demise  or  demises,  which,  previously  to  such  cesser  or  determination, 
shall  have  been  granted  or  demised  of,  or  charged  upon,  the  said  manors 
and  other  hereditaments  hereby  released,  or  expressed  and  intended  so  to 
be,  or  any  part  thereof,  in  pursuance  of  any  of  the  powers  hereinafter  con- 
tained: (except  as  to  any  annual  sum,  and  the  powers,  or  remedies,  and 
terraes  of  years  for  securing  the  same,  which  shall  have  been  granted,  limited, 
or  appointed,  by  the  said  A.  in  pursuance  of  the  power  hereinafter  for  that 
purpose  contained.)  And  it  is  hereby  further  agreed  and  declared  between, 
and  by,  the  parties  to  these  presents,  that  the  cesser  or  determination  of  the 
estate  of  the  said  A.  or  of  any  other  tenant  for  life,  by  force  of  the  proviso 
hereinbefore  contained,  shall  not  operate  to  exclude,  prevent,  or  prejudice, 
any  of  the  contingent  remainders  hereinbefore  limited  to  her,  his,  or  their 
spn  or  sons,  daughter  or  daughters,  or  any  other  person  or  persons:  but 
that  the  remainder  limited  to  the  said  C.  and  D.  and  their  heirs,  during  the 
life  of  the  said  A.  or  such  other  tenant  for  life,  shall,  after  such  cesser  or 
determination,  take  effect,  and  continue,  for  preserving  such  contingent 
remainders,  and  giving  them  effect  as  they  m.ay  arise.  And  that  immedi- 
ately from  and  after  such  cesser  or  determination  of  such  preceding  estate 
for  life,  and  during  the  suspense  and  contingency  of  such  then  expectant 
remainder,  the  said  (J.  and  D.  their  heirs  and  assigns,  shall  receive,  pay 
and  apply  the  rents  and  profits  of  the  said  manors  and  other  hereditaments, 
which  would  belong  to  such  tenant  for  life,  if  such  cesser  or  determination 
had  not  taken  place,  unto  the  person  or  persons,  for  the  intents  and  pur- 
poses, and  in  the  manner,  to,  for,  and  in  which,  the  same  rents  and  profits 
would  be,  or  would  have  been  payable  and  applicable  respectively,  under 
and  by  virtue  of  the  limitations  and  provisoes  hereinfore  contained ;  in 
case  such  tenant  for  life  was  actually  dead;  so  that,  immediately  from  and 
after  such  cesser  or  determination,  the  issue  of  the  said  A.  or  of  such  other 
tenant  for  life,  entitled  for  the  time  being,  under  the  limitations  aforesaid,  to 
the  said  manors  and  other  hereditaments,  in  remainder  immediately  expectant 
on  the  decease  of  the  said  A.,  or  of  such  other  tenant  for  life,  may  be 
entitled  to  the  rents  and  profits  of  the  said  manor  and  other  hereditaments, 
for  his  and  their  own  proper  use  and  benefit  respectively,  during  the  life  of 
the  parent,  as  if  such  parent  were  dead :  and  that  in  case  no  such  issue 
shall  be  in  existence,  then,  during  the  vacancy  or  contingency  of  such  issue, 
'  the  person  next  entitled  for  the  time  being,  under  the  limitations  aforesaid, 
'  to  a  vested  remainder  in  the  said  manors  and  other  hereditaments,  expectant 
'  on  the  decease  of  the  said  A.  or  of  such  other  tenant  for  life,  and  failure 
'  of  such  issue  of  her,  or  his  body,  shall  and  may  be  entitled  to  the  said  rents 
'  and  profits  for  his  and  their  proper  use  and  benefits  respectfully,  but  without 
'any  exclusion  of,  or  prejudice  to  the  estate,  interest,  or  right  of  any  such 
'  issue,  afterwards  coming  into  existence,  but  only  from  the  time  of  the  birth 
*  of  such  issue  respectively." 

On  the  doctrine  particularly  applicable  to  the  clauses,  forming  the  subject 
of  this  annotation,  the  cases  of  Hopkins  v.  Hopkins,  For.  44.    1  Ves.  sen.  268, 

1  Atkyns, 


30  E.  1. 
Formedon,  65. 
19  E.  2. 
Formedon,  61. 
IS  E.  3.  46. 
12  E.  4.  3. 
(Cro.  Car.  405. 
(1  Roll.  Abr. 
632.) 

(Post  356.  a.) 
(Sid.  83.) 
(Ant.  301.) 


327.  a.  327.  b.J  Of  Discontinuance.  L.  3.  C.  11.  Sect.  597. 

warrantie,  which  was  founded  •upon  great  reason  and  equitie; 
which  benefit  of  the  warrantie  should  be  prevented  and  avoided 
if  the  entrie  of  him  that  right  had  were  kiwfull,  and  thereby  also 
the  danger  that  many  times  happeneth  by  taking  of  possessions 
was  warily  prevented  by  law.  But  then  it  may  be  demanded,  see- 
ing that  there  was  no  reversion  or  remainder  expectant  upon  any 
estate  taile  at  the  common  law,  nor  the  issue  in  taile  had  any 
remedy  by  the  common  law,  if  the  tenant  in  taile  had  aliened, 
then  by  what  law  is  the  alienation  of  tenant  in  taile  a  discon- 
)    tinuance  at  this  day  to  the  issue  in  taile,  or  to  him  in 

reversion  or  remainder?  Whcrounto  itis  thus  0:^an-  rS^V.! 
swered,  that  it  is  provided  by  the  statute  of  TT.  2.  ca.  1.  L  b.  J 
De  donis  condiiionalihiis,  quod  non  haheant  illi  qiiibus 
tenementum  sic  fuerit  datum  potestatem  alienandi,  &c.  Upon 
these  words  the  sages  of  the  law  have  construed  the  said  Act 
according  to  the  rule  and  reason  of  the  common  law,  and  that 
iu  divers  and  sundry  variable  manners.  For  some  alienations  of 
tenant  in  taile,  they  have  adjudged  voydable  by  the  issue  in 
taile  by  action  onl}';  some  at  the  election  of  the  issue  in  taile  to 
avoid  it  by  action,  entry,  or  claime :  some  are  merely  void 
by  the  death  of  the  tenant  in  taile  :  which  several  constructions 
were  made  upon  the  selfe-same  words  aforesaid. 

As  for  example,  if  tenant  in  taile  make  a  feoifcment  in  fee, 
this  drives  the  issue  in  taile  to  his  action,  which  is  called  in  law 
a  Discontinuance;  and  this  construction  was  made  for  that  at 
the  common  law  the  feoffement  of  an  abbot  or  bishop,  or  of  the 
husband  seised  in  the  right  of  his  wife,  did  worke  a  disconti- 
nuance, and  did  drive  the  successor  and  the  wife  to  their  action, 
and  foreclosed  them  of  their  entrie;  and  as  the  entrie  of  the 
issue  was  taken  away,  so  conseqaently  of  them  in  reversion  and 


18  E.  3.  12. 

19  E.  3. 
Bre.  468. 
24  E.  3.  28. 
36  Ass.  8. 
22  E.  2. 
Discon.  50. 
5  E.  4.  3. 
4  H.  7.  17. 
33  E.  3. 
Formedon,  47. 
13  H.  7.     PI 


& 
Com.  426.  Smith  &.  Stapleton's  case.     (3  Ptep.  85.) 


remainaer. 


1  Atkyns,  581.  Doe  d.  Heneage  v.  Heneage,  4  Term  Rep.  13.  Carr  v.  lord 
Erroll,  6  East,  58.  14  Ves.  478.  And  Stanley  v.  Stanley,  16  Yes.  491,  may 
be  usefully  consulted. 

II.  3.  The  injunction  of  taking  a  j'xirticidar  name,  and  using  particular 
arms,  is  sometimes  improperly  used ; — As,  where  lands  are  settled  to  the  use 
of  B.  and  the  heirs  of  his  body,  he  and  they  taking,  using,  and  bearing, 
and  continuing  to  take,  use,  and  bear  the  name  an^l  arms  of  A.;  or  to  the 
use  of  B.  and  his  heirs,  he  and  they  taking,  using,  and  bearing,  and  con- 
tinuing to  take,  use,  and  bear  the  name  and  arras  of  A. — But  each  of  these 
modes  of  injunction  is  very  objectionable.  The  first  is  nugatory;  as  B.  by 
sufiering  a  common  recovery,  may  acquire  the  fee  simple  of  the  estate,  dis- 
charged from  the  condition.  The  second  creates  a  fee  simple  conditional,  to 
endure  no  longer  than  during  such  time  as  B.  and  his  heirs  comply  with  the 
condition,  and  therefore  virtually  prevents  the  alienation  of  the  estate.  The 
introduction  of  the  woi'd  "assigns"  into  the  limitations,  does  not  practically 
remove  this  objection.  If  the  lands  held  under  the  limitation  last  mentioned, 
vest  in  the  heir  at  law  of  the  settler,  the  condition  is  determined,  as  there  is 
no  one  to  take  advantage  of  it.  The  condition  may  be  also  released  by  such 
heir  at  law  to  the  owner  of  the  conditional  estate.  If,  after  the  condition  is 
broken,  the  owner  of  the  land  levies  a  fine  with  proclamations,  it  may  be  a 
bar  after  the  expiration  of  the  five  years,  to  the  right  of  entry  of  the  heir. 
Mayor  of  London  v.  Alford,  Cro.  Car.  575.     1  Jones,  452.     Cromwell's  case. 

2  K^p.  69.     Thomasin  v.  Mii.kworth.  Carter,  75.— [Xote  283.] 


L.  3.  C.  11.  Sect.  597.    Of  Discontinuance.  [327.  b. 

remainder.  Also  if  an  abbot,  bishop,  or  husband,  in  the  right 
of  his  wife,  seised  of  a  rent,  or  of  any  other  inheritance  that  lieth 
in  grant,  had  aliened,  it  was  in  the  election  of  the  successor,  or 
wife  after  the  death  of  her  husband,  to  claiine  tlie  rent,  &c.  or 
to  bring  an  action,  for  that  alienation  did  not  worke  a  discon- 
tinuance; and  so  it  is  by  construction  in  case  of  tenant  in  taile. 
Lastly,  if  the  abbot,  bishop,  or  husband,  had  granted  a  rent 
newly  created  out  of  the  land,  &c.  to  another  in  fee,  this  had 
utterly  ceased  by  their  death  ;  and  so  it  is  also  by  construction  in 
case  of  tenant  in  taile.  So  as  these  words  (^ikju  habctit  pol.vstnUnn  (1  Leo.  66.) 
alienandi)  do  worke  these  effects,  viz.  as  to  lands,  that  a  feott- 
uunt  barreth  not  the  issue,  &c.  of  his  action  but  workcth  a  dis-  (PlowJ.  437.) 
continuance  to  barre  him  of  his  entrio  ;  as  to  rents  or  any  thing 
in  esse,  that  lie  in  grant,  that  the  said  words  doe  take  away  his 
power  to  make  any  discontinuance :  as  to  rents,  &c.  newly 
created,  that  they  take  away  his  power  to  make  them  to  continue 
longer  than  during  his  life. 

But  there  is  a  diversitie  betweene  an  alienation  making  a  dis- 
continuance of  an  estate  which  taketh  away  an  entrie,  and  an 
alienation  working,  divesting  or  displacing  of  estates  which 
taketh  away  no  entry.  As  if  there  be  tenant  for  life,  the  re- 
mainder to  A.  in  taile,  the  remainder  to  B.  in  fee,  if  tenant  for 
life  doth  alien  in  fee,  this  doth  divest  and  displace  the  remainders, 
but,worketh  no  discontinuance.  And  therein  it  is  to  be  observed, 
that  to  every  discontinuance  there  is  necessary  a  divesting,  or 
displacing  of  the  estate  and  turning  the  same  to  a  right ;  for  if 
it  be  not  turned  to  a  right,  they  that  have  the  estate  cannot  be 
driven  to  an  action.  And  that  is  the  reason  that  such  inherit- 
ances as  lie  in  grant  cannot  by  grant  be  discontinued,  because 
such  a  grant  divesteth  no  estate,  but  passeth  only  that  which  he 
may  lawfully  grant,  and  so  the  estate  itselfedoth  descend,  revert, 
or  remaine  as  shall  be  said  hereafter  in  this  Chapter. 

A.  maketh  a  gift  in  taile  to  B.  who  maketh  a  gift  in  taile  to  C. 
(J.  maketh  a  feoflFraent  in  fee  and  dieth  without  issue,  B.  hath 
issue  and  dieth,  the  issue  of  B.  shall  enter;  for  albeit  the  feoff- 
ment of  C.  did  discontinue  the  reversion  of  the  fee  simple  which 
B.  hath  gained  upon  the  estate  taile  made  to  6'.  yet  could  it  not  (10  Rep.  95.) 
discontinue  the  right  of  intaile  which  B.  had,  which  was  discon- 
tinued before ;  and  therefore  when  C.  died  without  issue,  then 
did  the  discontinuance  of  the  estate  taile  of  B.  which  passed  by 
his  liverie,  cease,  and  consequently  the  entrie  of  the  issue  of  B. 
lawfuU  ;  which  case  may  open  the  reason  of  many  other  cases. 

Also  note,  that  a  discontinuance  made  by  the  husband  did  take 
away  the  entrie  only  of  the  wife  and  her  heires  by  the  common 
law,  and  not  of  any  other  which  claimed  by  title  paramount 
above  the  discontinuance.  As  if  lands  had  been  given  to  the 
husband  and  wife,  and  to  a  third  person,  and  to  their  heires,  and 
the  husband  had  made  a  feoffment  in  fee,  this  had  beene  a  dis- 
continuance of  the  one  moitie,  and  a  disseisin  of  the  other 
moitie  :  if  the  husband  had  died,  and  then  the  wife  had  died,  the 
survivor  should  have  entred  into  the  whole,  for  hec  claimed  not 
under  the  discontinuance,  but  by  title  paramount  from  the  first 
feoffor ;  and  seeing  the  right  by  law  doth  survive,  the  law  doth 
five  him  a  remedy  to  take  advantage  thereof  by  entry,  for  other 
remedie  for  that  moiety  he  could  not  have. 

^^  In  fee,  or  in  fee  tai'c."     And  so  it  is  of  an  estate  for  life. 
Vol.  II.— 36  Sect. 


328.  a.]     Of  Discontinuance.     C.  11.  S.  598-99,  600-1. 

Sect.  598. 

A  LSO  if  tenant  in  taile  he  disseised,  and  he  release  hy  his 

Jl@°*  ^c^^  ^^  ^''^'   disseisour  and  to  his  heirs  all  the  right  FSSS."! 
ti'hich  he  hath  in  the  same  tenements,  this  is  no  discontinuance,  L     ^-    J 
for  that  nothing  of  the  right  passeth  to  the  disseisor,  but  for 
terme  of  the  life  of  tenant  in  tail  which  made  the  release,  ^^c. 

(2  Rep.  31.)  Sect.  599. 

J)  UT  by  the  feoffment  of  tenant  in  taile,  fee  simple  passeth  hy  the  same 
feoffment  by  force  of  the  liverie  of  seisin,  ^c. 

Sect.  600. 

J)VT  hy  force  of  a  release  nothing  shall  passe  out  the  right  which  he 
may  laufully  and  rightfully  release,  without  hwt  or  dammage  to 
other  persons  who  shall  have  rigid  therein  after  his  decease,  ^c.  So  there 
is  great  diversitie  betiveene  a  feoffment  of  tenant  in  taile,  and  a  release 
made  by  tenant  in  taile. 

OUR  author  having  put  examples  of  estates  passing  hy  trans- 
mutation of  an  estate  and   possession,  doth  in  this   and   the 
two  Sections  following  put  a  diversitie  between  a  feoifjnent  and 
a  release  or  confirmation  of  a  bare  right ;  for  it  is  a  rule  in  law. 
that  the  disseisee  or  any  other  that  hath  a  right  only  by  his 
9  E.  4.  IS.  release  or  confirmation,  cannot  make  any  discontinuance,  because 

12  E.  4. 11.  nothing  can  passe  thereby  hut  that  which  may  lawfully  passe, 

21  H.  6.  58.  S"*  otherwise  it  is  of  a  feoff'ment  in  respect  of  the  liverie  of 
(Post. 329, 330.)  seisin,  for  that  it  is  the  most  solemne  and  common  assurance  in 
the  country,  and  to  be  maintained  for  the  common  quiet  of  the 
realme;  and  by  the  feoifment  the  freehold  (which  is  so  much 
esteemed  in  law)  doth  passe  by  open  liverie  to  the  feoffee,  and 
by  the  release  a  bare  right- 


Sect.  601. 

T>UT  it  is  said,  that  if  the  tenant  in  taile  in   this  case  release  to  his 

disseisor,  and  bind  him  and  his  heires  to  warrantie,  *  and  dieth, 

and  this  warrantie  descend  to  (A)  his  issue,  this  is  a  discontinuance  by 

reason  of  the  ivarrantie  (f  ceo  est  doncontinuauce  per  cauae  de  le  gar- 

raiitie)|. 

THE 

*  &c.    added   in    L.    and    M.    and     if  donqncs  added  in  L.  a7id3J.  and  Roh. 
E  oh.  X  <t-c-  added  in  L,  and  M.  and  Roh. 

(A)  Should  it  not  be,  "  upon  his  issue,"  instead  of,  '"  to  his  issue"  ?  See  3fr.  Ritao't 
Intr.p.  1 13,  ichere  a  distinction  '»  taken  beticeen  a  irnrrantt/  tchich  descends  as  a  heneficium 
>u  the  heir,  and  a  warranty  tchich  descends  as  an  onus  upon  the  heir. 


L.  3.  C.  11,  S.  602-3.  Of  Discontinuance.   [328.  b.  329.  a. 

M  HE   reason  why  the  addition  of  the  warrantie  in  this  case  3  H.  4.  9. 

-I     maketh  a  discontinuance,  is  that  which  hath  been  said,  viz.  22  R.  2. 

If  the  issue  in  taile  should  enter,  the  warrantie  (which  j2*E°  4  il' 

[338.  'I   is  so  much  favoured  in  hiw)  0:5"  should  be  destroyed  ;  21  H.  7.  9. " 

b.       I  and  therefore  to  the  end  that  if  assets  in  fee  simple  43  E.  3.  8. 

doe  decend,  he   to  whom   the  release  is  made,  may  ...  t^         on 

111  11  II  1  11-1  11  ^^^-  iJiscon,  30. 

plead  the  same,  and  barre  the  demandant :   by  winch  meanes  all  y;.  Seet.  596. 

rights  and  advantages  are  saved.     And  that  I  may  note  it  once  602.  637.  658. 

for  all,  an  {^it  is  said)  with  Litthton  is  as  good  as  a  concessnm  in  jp^f'gv^o^'gQQ  \ 

a  booke  case. 


Sect.  602. 


B 


UT  if  a  man  hath  issue  a  sonne  by  his  wife,  and  his  wife  dieth, 
and  after  he  taketh  another  ivife,  and  tenements  are  given  to  him 
and  to  his  second  wife,  and  to  the  heires  of  their  two  bodies  engendred, 
and  they  have  issue  another  sonne,  and  the  second  wife  dieth,  and  after 
the  tenant  in  taile  is  disseised,  and  hee  release  to  the  disseisor  all  his 
right,  ^c.  and  bind  him  and  his  heires  to  warrantie,  ^c,  and  die,  this 
is,  no  discontinuance  to  the  issue  in  taile  by  the  second  wife,  but  he  may 
ivell  enter,  §  for  that  the  tvarranty  descendeth  to  (B)  his  elder  brother 
which  his  father  had  by  his  first  wife,  \\  Sj-c. 


Sect.    603.  (8  Rep.  86.) 

TN  the  same  manner  is  it,  ivhere  the  lands  are  descendible  to  the 

youngest  sonne  after  the  custome  of  Burr ough- English,  which  are 

entayled,  tfc.  and  the  tenant  in  tayle  hath  two  sonnes,  and  is  disseised, 

and  he  releaseth  to  his  disseisour  all  his  right  with  warrantie,  ^c.  and 

dieth,  the  younger  sonne  may  enter  %ipon  the  disseisor,  notivithstanding 

the  warranty,  for  that  the  ioarrantie  descendeth  to  (C)  the 

t3S9."I  elder  son  :  for  alwayes  the  ^O"  warrantie  shall  descend  to  him 
a.     J  loho  is  heire  by  the  common  law. 

BY  these  two  examples  in  this  and  the  Section  next  following, 
it  appeareth  that  a  warrantie  being  added  to  a  release  or  con- 
firmation, and  descending  upon  him  that  right  hath  to  the  lands, 
maketh  a  discontinuance ;  otherwise  it  is  out  of  the  reason  of  the 
law,  aud  worketh  no  discontinuance,  if  the  warrantie  descendeth 
upon  another. 

"  With  icarrantie,  d'c."     Here  is  implied  that  he  doth  binde 
him  and  his  heires  to  warrant  to  the  releasee  and  his  heires. 

"Alwayes 
§  &c.  added  in  L.  and  M.  and  Roh.         1|  &c.  not  in  L.  and  M.  or  Roh. 

(B)    Vld.  note  A,  on  Sect.  601.  (C)    Vid  note  A.  on  Sect.  601. 


329.  a.  329.  b.]  Of  Discontinuance.  L.  3.  C.  11.  S.604-5-6. 

j3  ji  4^  "  Ahvayes  the  jrarrantie  shall  descend  to  Mm  wJio  is  heire  hg  the 

Garrantie,  94.  common  law."  This  is  a  maxime  of  the  common  law,  and  hereof 
19  R.  2.  more  shall  be  said  in  the  Chapter  of  Warrantie,  Sectione  718. 

(Posti'sTe'.a.)       735,  736,  737.  so  as  it  is  not  the  warrantie  only  that  maketh  a 

discontinuance,  but  the  warrantie  and  the  discent  upon  him  that 

right  hath  together. 


Sect.  604. 

A  LSO,  if  an  abbot  be  disseised,  and  hee  releaseth  to  the  disseisor  vjith 

warrantie,  this  is  no  discontinuance  to  his  successor,  because  nothing 

passeth  by  this  release  but  the  right  which  hee  hath  during  the  time 

that  he  is  abbot,  and  the  ivarrantie  i^  expired  by  his  privation,  or  by  his 

death. 

(3  Rep.  73.)  T'^HE  reason  hereof  yeelded  by  Littleton  is,  for  that  the  war- 
i     rantie  is  expired  by  his  privation  Of  death. 

"  £}/  his  privation  crhy  h\s  death."  Note,  that  privation  is 
here  resembled  to  death,  and  so  is  translation  also.  Wherein  this 
diversitie  is  worthy  of  observation,  that  when  a  bishop,  &c.  make 
an  estate,  lease,  grant  of  a  rent-charge,  warranty,  or  any  other  act 
which  may  tend  to  the  diminution  of  the  revenues  of  the  bishop- 
ricke,  &c.  which  should  maintaine  the  successor,  there  the  priva- 

Vide29  E.  3. 16.  tion  or  translation  of  the  bishop,  &c.  is  all  one  with  his  death. 

(Ant.  300.  b.)       But  where  the  bishop  is  patron  and  ordinary,  and  confirmeth  a 

(l>yer,356.)  lease  made  by  the  parson  without  the  dcane  and  chapter,  and  after 
the  parson  dieth,  and  the  bishop  collateth  another,  and  thea  is 
translated,  yet  his  confirmation  remaineth  good  ;  for  the  revenues 
that  are  to  maintaine  the  successor  are  not  thereby  diminished. 
And  the  like  diversitie  doth  hold  in  case  of  resignation,  notwith- 

[m]  29  E.  3.  16.   standing  [m]the  authoritie  to  the  contrary. 

tit.  Garrant.  99. 


Sect.  605. 

ALSO,  if  a  man  seised  in  the  right  of  his  ivife  be  disseised,  and  he 

releaseth,  ^c.  with  warrantie,  this  is  no  discontinuance  to  the  wife, 

if  shee  surviveth  her  husband,  but  that  shee  may  enter,  t|v.  Causa  patet. 

T^'^HIS  is  evident,  unlesse  the  wife  be  heire  to  the  husband  (a8 
-L  by  law  she  may  be),  and  then  it  is  a  discontinuance  for  the 
cause  aforesaid.    . 


(1  Saund.  261.)  |0-  Scct.   606.  [  SaO.I 

A  LSO,  if  a  tenant  in  tayle  of  certaine  land  letteth  the  same  land  to 

another  for  terme  of  year  es,  by  force  ivhercnf  the  lessee  hath  thereof 

possession,  in  whose  possession  the  tenant  in  tayle  by  his  deed  releaseth  all 

the 


L.  3.  C.  11.  S.  607-8-9.  Of  Discontinuance.  [329.  b.  330.  a. 

the  right  that  he  hath  in  the  same  land,  to  have  and  to  hold  to  the  lessee 
and  to  his  heires  for  ever  this  is  no  discontinuance,  hut  after  the  decease 
of  the  tenant  in  tayle,  Ids  issue  may  well  enter,  because  by  such  release 
nothing  passeth  but  for  terme  of  the  life  of  the  tenant  in  tayle  (pur  ceo 
que  per  tiel  release  riens  passa  forsque  pur  terme  de  *  la  vie  de  la  ten- 
ant en  le  taile). 

^^  J)  E  CAUSE  by  such  release  nothing  passeth."     Here  is  one 
of  the   uiaximes  of  the  common   law  rehearsed   by  our 
author,  whereof  he  doth  put  divers  examples  hereafter. 


beet.    b07.  (3  Rep.  85.  b.) 

TN the  same  manner  it  is,  if  the  tenant  in  tayle  confirme  the  estate  of 
the  lessee  for  yeares,  to  have  and  to  hold  to  him  and  to  his  heires, 
this  is  no  discontinuance,  for  that  nothing  passeth  by  such  confirmation 
but  the  estate  which  the  tenant  in  tayle  hath  for  terme  of  his  life,  ^c. 


"  \rO  THING  passeth  hy  such  confirmation."  Here  is  another  (Ant.  328.) 

•of  the  maximes  of  the  common  law  rehearsed  by  our  author, 
whereof  he  putteth  examples  hereafter. 

More  shall  be  said  hereof  in  the  next  Section  following. 


Sect.  608. 

ALSO,  if  tenant  in  taile  after  such  lease  grant  the  reversion 

t 330.1  *^*  f^^  ^y  ^"'^  deed  to  another,  and  g@°*  willeth  that  after 
a.  J  the  terme  ended,  that  the  same  land  shall  remaine  to  the  grantee 
and  his  heires  for  ever,  and  the  tenant  for  yeares  attorne, 
this  is  no  discontinuance.  For  such  things  which  passe  in  such  cases 
of  tenant  in  taile  only  by  way  af  grant,  or  by  confirmation,  or  by  such 
release,  nothing  can  passe  to  make  an  estate  to  him  to  ivhom  such  grant, 
or  confirmation,  or  release,  is  made,  but  that  which  the  tenant  in  taile 
may  rightfully  make,  and  this  is  but  for  terme  of  his  life  (f  et  ceo  n'est 
forsque  pur  terme  de  sa  vie),  ^c 


Sect.   609.  (Ant.  251.  b.) 

TpOR  if  I  left  land  to  a  man  for  terme  of  his  life,  .^^c.  and  the  tenant 

for  life  letteth  the  same  land  to  another  for  terme  of  years,  ^e.  and 

after  my  tenant  for  life  grant  the  reversion  to  another  in  fee,  and  the 

tenant 

*  la — son,  L.  and  M.  and  Roh.  f  ^^  ^^^  ^'^^^ — ^^-  6^*>  -^-  ""'^  ^■ 

and  Roh. 


330.  a.]         Of  Discontinuance.     L.  3.  C.  11.  Sect.  609. 

tenant  for  yeares  attorne,  in  this  case  the  grantee  hath  in  the  freehold 
but  an  estate  for  terme  of  the  life  of  his  grantor  (en  cest  cas  le  grantee 
fn'ad  en  le  franktenement  forsque  |  estate  pur  terme  de  vie  son 
grauntor),  ^c.  and  I  which  am  in  the  reversion  of  the  fee  simple  may 
not  enter  by  force  of  this  grant  of  the  reversion  made  by  my  tenant 
for  lifey  for  that  by  such  grant  my  reversion  is  not  discontinued,  but 
alwayes  remaines  unto  me,  as  it  was  before,  notivithstanding  such  grant 
of  the  reversion  made  to  the  grantee,  to  him  and  to  his  heires,  cfr?.  be- 
cause nothing  passed  by  force  of  such  grant,  but  the  estate  ivhich  the 
grantor  hath,  ^c.  (1). 

Sect. 

f  n'ad — ads  L.  and  M.  and  Roh.  |  estate  not  in  L.  and  M.  or  Boh. 


(1)  VII.  As  to  (he  modes  of  conveyance  ichich  ivorJc  a  discontinuance,  it  may 
be  laid  down  as  a  general  rule,  that  no  alienation  which  is  not  made  by  livery 
of  seisin,  or  by  some  mode  of  assurance  equivalent  to  it,  can  work  a  discon- 
tinuance. It  has  been  observed  before,  that  the  usual  mode  of  conveyance  at 
the  common  law,  was  -i.  feoffment ;  that  feoifments  were  formerly  made  without 
writing;  and  that,  when  writing  came  into  use,  the  transmutation  of  the  pro- 
perty was  eifected,  not  by  the  writing,  but  by  the  livery  which  it  authenticated. 
A  fine  is  often  defined  to  be  a  feoffment  upon  record,  the  conusor's  acknow- 
ledgment upon  record  of  the  right  of  the  conusee  to  the  lands  being  considered 
tantamount  to  actual  livery.  The  fines,  therefore,  which  are  said  to  be  exe- 
cuted in  contradistinction  from  those  which  are  said  to  be  executory,  give  the 
conusee  the  immediate  possession  of  the  land ;  and  those  which  are  called  exe- 
cutory enable  him  to  recover  it  immediately,  by  an  habere  facias  seisinam. — ^-1 
common  recovery  is  the  judgment  of  a  court  of  record,  that  the  demandant 
shall  recover  against  the  tenant ;  upon  which  he  may  immediately  sue  out  the 
habere  facias  seisinam.  Considering,  therefore,  fines  and  recoveries  only  as 
common  assurances,  the  acknowledgment  upon  record  in  the  former,  and  the 
judgment  to  recover  in  the  latter,  are  supposed  to  equipoise  the  notoriety  of 
livery.  Hence  both  a  fine  and  a  common  recovery  are  of  force  to  work  a  dis- 
continuance. With  respect  to  releases, — where  the  person  whose  estate  is  dis- 
continued releases  to  the  alienee,  his  release  must  be  considered  as  operating 
per  mitter  le  droit.  Now  it  has  been  observed  in  a  former  place,  that  releases 
by  persons  disseised,  may  be  made  either  to  the  disseisor,  his  feoffee,  or  his 
heir:  and  that  in  all  these  cases,  the  possession  is  in  the  releasee,  the  right  in 
the  releasor,  and  that  the  union  of  the  right  to  the  possession  completes  the 
title  of  the  releasee,  the  notoriety  of  the  disseisin  countervailing  the  livery. 
But  this  can  only  be  understood  of  those  cases  where  the  releasor  has  the  fee 
simple.  In  both  cases  the  possession  of  the  disseisor  is  equally  notorious; 
but  where  the  releasor,  as  in  the  instance  brought  by  Littleton,  has  only  a 
partial  estate  in  the  lands,  he  has  not  in  him  a  right  to  the  fee  simple  of 
the  land,  and  cannot,  of  course,  transfer,  or  cede  it  to  another.  Hence, 
though  the  release  of  a  disseisee,  who  before  the  disseisin  was  seised  in  fee- 
simple,  completes  the  title  of  the  disseisor;  the  release  of  a  disseisee,  who 
before  the  disseisin  had  only  an  estate  tail,  does  not  complete  his  title,  and 
therefore  does  not  amount  to  a  discontinuance. — With  respect  to  conveyances 
which  operate  hy  the  statute  of  uses;  it  is  clear  that  there  cannot  be  a  discon- 
tinuance, where  the  possession  remains  with  the  party;  for,  in  those  cases, 
the  possession  is  not  disturbed,  nor  can  there  be  any  livery  of  seisin,  or  any 
thing  tantamount  to  it;  but  it  is  equally  clear,  that  if  the  uses  are  raised 
by  a   transmutation    of   the    possession,  that    transmutation    may  produce  a 

discontinuance. 


L.  3.  C.  11.  Sect.  610-11.    Of  Discontinuance.  [330.  I). 


rsso.j  B@-Sect.  610.  (Ante  32s,  329.) 

TN the  same  manner  is  it,  if  tenant  for  terme  of  life  hy  his  deed  eon- 

firme  the  estate  of  his  lessee  for  ye.ires,  to  have  and  to  hold  to  him 

and  his  heires,  or  release  to  his  lessee  and  his  heires,  yet  the  lessee  for 

yeares  hath  an  estate  hut  for  terme  of  the  life  of  the  tenant  for  life,  ^-c. 

"  Tj^OR  such  things  which  passe  in  such  cases  of  tenant  in  taile, 
<fcc."  Here  is  rehearsed  another  ancient  niaxime  of  the 
common  law  touching  grants;  and  hereby  it  appeareth  that  a 
feoffment  in  fee  (albeit  it  be  by  parol)  is  of  a  greater  operation 
and  estimation  in  law,  than  a  grant  of  a  reversion  by  deed, 
though  it  be  inrolled,  and  attornement  of  the  lessee  for  yeares 
of  (A)  a  release,  or  a  contirmation  by  deed,  for  the  reasons  afore- 
said. And  this  is  manifested  by  the  example,  which  our  author 
here  in  these  three  Sections  putteth. 


Sect.  611. 

J)  UT  otherwise  it  is  when  tenant  for  life  maketh  a  feoffment  in  fee, 
for  hy  such  a  feoffment  the  fee  simple  passeth.  lor  tenant  for 
yeares  may  make  a  feoffment  in  fee,  and  hy  his  feoff ment  the  fee  simple 
shall  passe,  and  yet  he  had  at  the  time  of  the  feoffment  made  hut  an 
estate  for  terme  of  yeares,  ^c.  (1.) 

''BUT 

(A)  Here  "of"  seems  printed  hy  mistake  inslead  of"  to"     See  Mr.  Hitso's  Intr.  p.  121. 


discontinuance.  This,  in  fact,  is  only  repeating  what  has  been  observed 
before ;  for  it  is  not  the  creation  or  limitation  of  the  use,  but  the  operation 
upon  the  possession,  that  produces  the  discontinuance. — Upon  these  grounds, 
therefore,  a  bargain  and  sale,  a  covenant  to  stand  seised,  and  a  lease  and 
release,  cannot  work  a  discontinuance;  but  a  feoffment  executed,  a  fine  levied, 
or  a  recovery  suffered  to  uses,  have  that  power.  See  page  272.  a  note  1.  VI. — 
But,  if  a  warranty  is  annexed  to  a  bargain  and  sale,  covenant  to  stand  seised, 
or  release,  it  may  produce  a  discontinuance.  This  will  be  better  understood 
after  perusing  our  author's  chapter  on  Warranty.  At  present  it  is  sufficient  to 
observe,  from  lord  chief-baron  Gilbert's  Ten.  120,  that  a  release  with  warranty 
works  a  discontinuance ;  for  at  common  law  the  warranty  was  a  voluntary 
covenant  of  the  force  of  a  feudal  contract,  repelling  the  warrantor  from  claim- 
ing the  land,  and  obliging  him  to  defend  it ;  and  though  the  statute  takes 
away  the  force  of  such  covenants,  that  they  shall  not  bar  the  issue,  yet  the 
issue  must  claim  in  the  method  the  statute  proscribes,  viz.  by  action ;  and 
therefore  it  works  a  discontinuance,  since  the  issue,  in  such  case,  cannot  re- 
continue  but  by  action  only. — [Note  284.] 

(1)  What  possession  is  required  in  the  feoffo-  to  make  his  feoffment  an  actual 

disseisin 


330.  b.]       Of  Discontinuance.     L.  3.  C.  11.  Sect.  611. 

(Post  367.  a.)      "  7?^^^  '^"'  ^stoteybr  terme  of  year  es^  &c."     Here  it  is  implied, 

that  albeit  the  feoffment  made  by  lessee  for  yeares  be  a 

feoffment   between   the  feoffor  and  feoffee,   and  that   by   this 

feoffment 

disseisin  of  the  freehold,  not  merely  a  disseisin  which  is  such  at  the  election  of 
the  party,  has  been  a  subject  of  much  discussion ;  and  it  is  therefore  sup- 
posed, that  the  following  attempt  at  a  full  investigation  of  the  very  abstruse, 
but  not  useless,  learning  upon  the  subject,  will  not  be  unacceptable  to  the 
reader.  By  the  doctrine  of  the  feudal  law,  no  person  who  had  an  estate  of 
less  duration  and  extent  than  for  his  own  life,  or  for  the  life  of  another  man, 
was  considered  to  be  a  freeholder ;  and  none  but  a  freeholder  was  considered 
to  have  the  possession  of  the  land.  It  is  true,  that  estates  were  sometimes  held 
for  terms  of  years.  In  that  case,  the  possession  of  the  termor  was  considered 
to  be  the  possession  of  the  freeholder ; — but  still  the  termor  held  the  possession, 
though  he  held  it  for  the  freeholder  ;  and  the  freeholder,  by  trusting  the  termor 
with  it,  exposed  himself  to  lose  it,  by  the  termor's  negligence  or  treachery. 
If  the  termor  left  the  possession  vacant ;  if  he  permitted  himself  to  be  disseised 
of  it ;  if  he  undertook  to  alien  it  either  by  act  in  jmis,  or  by  matter  of  record  ; 
if  he  claimed  the  fee ;  or  if  he  affirmed  it  to  be  in  a  stranger ; — in  all  these 
cases  the  freeholder  exposed  himself  to  the  loss  of  the  possession,  as  much  as 
if  they  were  his  own  acts.  Thus  the  termor  held  the  possession,  but  he  was 
said  to  hold  it  nomine  alieno,  in  contradistinction  to  the  freeholder  himself, 
who  was  said  to  hold  it  nomine  proprio.  Hence  Britton  expressly  defines  an 
estate  of  freehold  to  be  "  the  possession  of  the  soil  by  the  freeholder ',"  and 
the  author  of  the  Doctor  and  Student  says,  "  that  the  possession  of  the  land 
"  is  called  in  the  law  of  England  the  franktenement  or  freehold."  Brit.  c.  32. 
Doct.  and  Stud.  dial.  2.  c.  22.  So  nearly  synonymous  in  those  days  was  the 
possession  to  the  freehold.  In  this  manner,  the  possession  of  the  termor 
differed  from  that  of  a  mere  bailiff,  who  had  no  possession.  The  same  prin- 
ciples obtained  with  respect  to  the  transfer  of  the  freehold.  Nothing  further 
was  necessary  than  a  delivery  of  the  possession,  or,  as  it  is  called  by  our  law- 
writers,  livery  of  seisin.  The  freehold  could  be  transferred  by  no  other  means. 
But  here  a  difference  is  to  be  observed  with  respect  to  the  effect  of  the  livery 
of  a  termor  for  years  (such  as  was  mentioned  before),  and  the  livery  of  a  mere 
bailiff.  On  account  of  the  solemnity,  upon  which  the  entry  of  the  termor  into 
the  lands  was  grounded ;  the  connection  between  him  and  the  reversioner,  and 
his  actually  holding  the  possession  of  the  land  (though  he  held  it  for  the  free- 
holder), the  livery  of  the  former  was  a  transfer  of  the  possession ;  but  the 
livery  of  the  latter  was  absolutely  without  effect.  In  process  of  time,  involun- 
tary alienation,  or  alienation  arising  from  attachment  for  debt,  was  admitted. 
This  produced  the  estates  of  tenants  by  elegit,  by  statute  merchant,  and  statute- 
staple.  Long  leases  for  years  also  came  into  use,  and  more  settled  and 
accurate  notions  were  had  of  tenancies  by  sufferance  and  at  will.  All  these 
were  considered  to  be  in  the  same  situation  as  the  termor  for  years.  Their 
possession  was  held  to  be  the  possession  of  the  immediate  freeholder :  but  as 
they  had,  or  rather  held,  the  possession,  and  were  in  by  the  act  of  the  free- 
holder in  some  cases,  and  by  his  privity  or  forbearance  in  all,  they  were  con- 
sidered to  be  in  as  of  the  seisin  of  the  fee.  It  sometimes  happened  that  per- 
sons had  the  possession  who  had  not  the  right;  such  were  tenants  by  disseisin, 
deforcement,  abatement,  or  intrusion.  Still,  as  they  had  the  possession,  they 
might,  by  livery  of  it,  transfer  it  to  another.  Thus,  by  the  old  feudal  law, 
on  the  one  hand,  the  freehold  could  not  be  transferred  but  by  livery  of 
seisin ;  on  the  other,  livery  of  seisin  could  not  be  made  by  any  person  who 
had  the  possession,  without  transferring  the  freehold.  This  transfer  of  the  fee 
was  called  a  feoffment.  No  writing  was  necessary  for  this  purpose;  and 
when  charters  came    into    use,  the  transfer  of  the  fee    was  supposed  to  be 

produced 


L.  3.  C.  11.  Sect.  611.        Of  Discontinuance.      [330.  b. 

feoffment  the  fee  simple  passeth  by  force  of  the  livery,  yet  is  it  a 
disseisin  to  the  lessor.     And  here  it  is  worthy  to  be  observed, 

that 


produced  (as  has  been  already  observed),  not  by  the  charter,  but  by  the  livery 
which  it  authenticated.     But  the  material  variation  with  respect  to  the  form 
of  transferring  property  by  livery  was,  that  originally  it  was  usual  to  make 
the  feoffment  on  the  land  before  the  peers  of  the  court,  who  subscribed  the 
charter  of  feoffment  with  their  names,  and  the  entry  of  the  feoffee  upon  the 
land  was  afterwards  recorded  in  the  lord's  court:  but  in  progress  of  time,  the 
feoffment  was  allowed  to  be  good,  though  it  were  attested  by  strangers  only ; 
and  the  recording  of  the  feoffee's  entry  was  dispensed  with.     This,  undoubt- 
edly, lessened,  very  considerably,  the  solemnity  and  notoriety  of  feoffments ; 
and  we  have  an  opinion  of  the  highest  authority,  delivered  with  much  consi- 
deration and  infinite  ability,  in  a  case  of  the  highest  moment,  that  it  had  a  very 
great  effect  on  their  operation  and  efficacy,  with  respect  to  the  circumstance 
before  us. — The  case  alluded  to  is  that  of  Taylor  on  the  demise  of  Atkyns  v. 
Horde  and  others,  1  Burr.  60.  5  Bro.  Par.  Ca.  247.  Cow.  689. — Asa  minute 
and  accurate  statement  and  examination  of  the  doctrines  laid  down  in  that 
case  will  serve  greatly  to  illustrate  the  point  now  under  consideration,  they 
shall  be  presented  here  to  the  reader.     The  case,  so  far  as  it  relates  to  the 
points  in  question,  was,  that  sir  Robert  Atkyns  was  tenant  for  life,  remainder 
to  dame  Ann  Atkyns,  his  wife,  for  life;  remainder  to  sir  Robert  Atkyns  (his 
eldest  son  by  a  former  marriage)  in  tail  male ;  remainder  to  Mr.  John  Tracy, 
and  his  younger  brothers  successively,  in  tail  male  ;  remainder  to  Mr.  Richard 
Atkyns  and  his  heirs.     Upon  the  death  of  sir  Robert  the  father,  dame  Ann 
his  widow  entered  upon  the  lauds.     In  Trinity  term  1710  an  ejectment  was 
brought  in  the  court  of  common  pleas,  against  her  ladyship,  by  John  Phillips, 
upon  the  several  demises  of  sir  Robert  Atkyns  the  son,  and  of  Joseph  Walker, 
to  whom  several  terms  of  years  attendant  upon   the    inheritance   had  been 
assigned,  in  trust  for  sir  Robert  the  son.     A  verdict  was  found  for  the  plaintiff, 
and  he  recovered  terminum  smim  jn-ccdkhim,  and  had  an  habere  facias  jMsses- 
sionem.     It  is  to  be  observed,  that  no  account  of  the  case  states  the  grounds 
upon  which  this  verdict  was  found  for  the   plaintiff.     Most  probably  it  was 
merely  in  consequence  of  the  term  of  years  which  had  been  assigned  to  him. 
On  the  1st  of  January  1710,  Juhn  Phillips,  the  plaintiff,  surrendered  the  terms 
to  sir  Robert  the  son;  and  on  the  17th  of  the  same  month  sir  Robert  made  a 
feoffment  of  the  estates  in  question,  with  livery  of  seisin,  to  James  Earle  and 
his  heirs.     In  the  deed  of  feoffment  it  was  declared,  that  the  feoffment  was 
made  that  James  Earle  might  become  perfect  tenant  of  the  freehold,  in  order 
for  the  suffering  of  a  common  recovery ;  which  recovery,  it  was  thereby  de- 
clared, should  enure  to  the   use  of  sir  Robert  Atkyns  the  son  and  his   heirs. 
The  recovery  was  suffered  in  Hilary  term  1710.     Sir  Robert  died  on  the  9th  of 
November  1711,  without  issue,  and  intestate.    His  nephew,  Mr.  Robert  Atkyns, 
was  his  heir  at  law.     In  Hilary  term  1711  an  ejectment  was  brought  against 
him  by  lady  Atkyns;  and  in  Easter  term  1712  a  general  verdict  was  given  for 
her.     She  died  in  the  month  of  October  following.    Upon  her  death,  Mr.  Robert 
Atkyns  entered,  and   continued  in  possession  of  the  estate  till   the  16th  of 
March  1753,  when  he  died,  leaving  issue  only  two  daughters;  Ann,  the  wife 
of  Mr.  Horde;  and  Pilizabeth,  the  wife  of  Mr.  Chamberlayne.     The  dpath  of 
sir  Robert  Atkyns  the  son  without  issue  necessarily  brought  into  question  the 
validity  of  the  recovery  suffered  by  him;   for  if  it  were  good,  it  destroyed  his 
estate  tail,  and  all  the  remainders  expectant  upon  it;  and  Mr.  Robert  Atkyns, 
his  nephew,  and  after  his  decease  Mrs.  Horde  and  Mrs.  Chamberlayne,  his  only 
children,  became  entitled  to  the  estates  as  his  heirs  at  law.     But  if  it  were  not 
a  good  recovery,   then,  upon  the  decease  of  dame  Ann  Atkyns,    Mr.  John 
Tracy  became  seised  in  tail  of  the  lands  devised  by  the  testator's  will,  with  the 

several 


330.  b.]         Of  Discontinuance.      L.  3.  C.  11.  Sect.  611. 

that  our  author  saith,  that  tenant  for  terme  of  yeares  may  make 
a  feoffment ;  whereupon  it  foUoweth,  that  the  feoffor  may  there- 
unto 

several  remainders  over. — In  the  year  1752,  an  ejectment  was  brought  against 
Mr.  Robert  Atkyns,  and  Mr.  and  Mrs.  Horde,  and  Mr.  and  Mrs.  Chamberlayne, 
by  Cyprian  Taylor,  on  the  demise  of  Mr.  John  Tracy,  who,  in  consequence  of 
a  direction  contained  in  sir  Robert  Atkyns  the  father's  will,  had  taken  the 
name  of  Atkyns.  The  jury  found  a  special  verdict.  The  case  was  argued 
four  times  before  the  judges  of  the  court  of  king's  bench.  A  point  arose, 
whether,  supposing  the  recovery  to  be  bad,  the  plaintiff's  ejectment,  not  having 
been  brought  within  twenty-one  years  after  his  title  accrued,  was  not  barred 
by  the  statute  of  limitations.  The  court  was  of  opinion  it  was  barred  by  that 
statute.  The  case  afterwards  went  to  the  house  of  lords  :  all  the  judges  were 
ordered  to  attend  :  their  opinion  was  asked  upon  the  point  arising  from  the 
statute  of  limitations;  it  agreed  with  that  of  the  judges  of  the  court  of  king's 
bench :  the  judgment  of  the  court  was  therefore  affirmed.  Afterwards,  Mr.  John 
Tracy  Atkyns  and  all  his  brothers  died  without  issue;  and  then,  supposing  the 
recovery  to  be  void,  Mr.  Edward  Kinsey  Atkyns,  the  then  heir  at  law  of 
Mr.  Richard  Atkyns,  became  entitled  to  the  estate.  He  claimed  under  a  new 
title,  and  was  not  therefore  bound  by  the  statute  of  limitations.  An  ejectment 
was  delivered  by  him  in  Hilary  term  1777.  This  brought  the  question  of  the 
validity  of  the  recovery  once  more  before  the  court.  It  is  to  be  observed,  that 
though,  when  the  case  came  before  the  court  upon  the  ejectment  brought  by 
Mr.  John  Tracy  Atkyns,  the  matter  went  off  on  the  point  arising  from  the 
statute  of  limitations,  yet  the  questions  arising  upon  the  validity  of  the 
recovery  were  most  elaborately  argued  by  the  bar :  and  lord  chief-justice 
Mansfield,  when  he  gave  the  judgment  of  the  court,  entered  into  a  very  minute 
discussion  of  them,  and  gave  his  opinion  very  fully  and  decisively  upon  them 
all :  so  that  what  was  said  upon  this  subject,  when  the  case  came  before  the 
court  in  1777,  was,  in  general,  only  a  repetition  of  what  was  said  upon  it  on 
the  former  occasion.  As  lord  Mansfield's  speech  in  the  report  given  of  it  by 
sir  James  Burrow,  contains  the  most  methodical  and  comprehensive  state  of 
the  arguments  and  opinions  intended  to  be  discussed  in  this  place,  it  is  here 
particularly  referred  to. — His  lordship  stated  the  question  to  be,  W.hether 
Earle  was  a  good  tenant  of  the  freehold  ?  He  observed,  that  to  prove  he 
was  a  good  tenant  of  the  freehold,  it  was  necessary  to  show,  either  that 
sir  Robert  Atkyns,  by  the  entry  under  the  judgment  in  ejectment  in  1710, 
acquired  the  freehold  by  disseisin ;  or  that,  supposing  he  did  not  acquire  the 
freehold,  he  acquired  the  possession,  and  by  his  feoffment  vested  an  estate  of 
freehold  in  Earle.  His  lordship  denied  both  of  these  positions.  As  to  the 
first,  he  laid  it  down,  that  the  disseisin  to  be  effectual  in  this  case,  must  be  an 
actual  disseisin,  not  a  disseisin  wliith  was  merely  such  at  the  election  of  the 
party.  No  case,  therefore,  or  other  authority  from  the  books  respecting 
disseisins,  was  applicable  to  the  present  case,  if  it  did  not  relate  to  an  actual 
disseisin.  He  then  proceeded  to  explain  the  nature  of  an  actual  disseisin. 
He  defined  seisin  to  be  a  technical  term,  to  denote  the  completion  of  that  in- 
vestiture, by  which  the  tenant  was  admitted  into  the  tenure  :  disseisin,  therefore, 
must  mean  the  turning  the  tenant  out  of  his  tenure,  and  usurping  his  place 
and  feudal  relation.  He  observed,  that  originally  no  tenant  could  alien  without 
license  of  the  lord ;  and  that,  when  the  lord  consented  to  the  alienation,  the 
only  form  of  conveyance  was  by  feoffment,  before  the  peers  of  the  court,  with 
the  lord's  concurrence,  and  with  the  ceremonies  of  homage  and  fealty.  That 
a  disseisin  differed  from  a  dispossession.  It  was  something  more.  The  effect 
of  it  was  to  make  the  disseisor  tenant  to  every  demandant,  and  freeholder  ile 
facto,  in  spite  of  the  true  owner.  That,  on  the  one  hand,  the  lord  must  know 
upon  whom  to  call  as  his  tenant ;  on  the  other  hand,  the  stranger  must  know 
against  whom  to  bring  his  praecipe.    A  dispossession,  therefore,  did  not  amount 

to 


L.  3.  C.  11.  Sect.  611.       Of  Discontinuance.       [330.  b. 

unto  annex  a  warrantie,  whereupon  the  feoffee  may  vouch  him ; 
but  of  this  jou  shall  reade  more  in  the  Chapter  of  Warranties, 
Sect.  698. 

Sect. 

to  a  disseisin,  if  it  were  not  forcible,  that  is,  against  the  will  of  the  real  owner; 
and  if  it  were  not  such  as,  both  with  respect  to  the  lord  and  to  strangers,  in- 
troduced the  dispossessor  into  the  tenure.  These,  he  said,  were  the  conse- 
quences of  an  actual  disseisin.  A  disseisin  by  election  was  attended  by  none 
of  these  circumstances.  In  that  case,  the  disseisor  was  neither  tenant  to  the 
lord  nor  the  stranger ; — he  was  merely  a  disseisor  at  the  will  of  the  disseisee, 
who  might,  if  he  thought  the  process  of  assise  a  more  eligible  remedy  than  any 
of  those  to  which  he  might  have  recourse,  without  disclaiming  his  seisin,  resort 
do  it,  and,  for  that  purpose,  choose  to  be  considered  as  disseised.  From  this 
description  of  the  nature  and  consequences  of  the  two  different  kinds  of  seisin, 
his  lordship  inferred,  that  sir  Robert's  entry  was  not  an  actual  disseisin.  Sup- 
posing it  a  real  proceeding,  a  termor  might  recover  against  the  disseisor,  or 
against  the  feoffue  of  the  lessor  ;  the  possession  he  recovered  enured  to  himself, 
or  for  his  own  benefit  during  his  term : — subject  to  that,  it  enured  to  or  for 
the  benefit  of  the  persons  who  had  the  right  to  the  freehold ;  that  is,  to  the 
lessor,  if  he  continued  the  owner  of  the  fee ;  to  his  alienee,  if  he  had  enfeoffed ; 
to  the  heir  or  feoffee  of  his  disseisor,  if  he  had  been  disseised  and  his  entry 
taken  away. — Then,  suppose  the  proceeding  to  be  merely  fictitious,  the  judg- 
ment only  entitled  the  party  to  recover  the  possession,  without  prejudice  to 
the  right.  Now,  by  the  special  verdict,  it  appears  he  had  no  right  to  the  pos- 
session :  he  had  therefore  a  possession  without  prejudice  to  the  right.  He 
was  not  ill  as  particular  tenant ;  there  was  no  privity  of  seisin;  he  had  only  a 
naked  possession. — But,  says  his  lordship,  the  case  is  still  stronger  :  the  true 
owner  cannot  even  elect  to  make  a  person  in  possession  under  a  judgment 
in  ejectment,  a  disseisor :  the  entry  is  not  inj'uste  &  swejudicio,  but  under  au- 
thority of  a  court  of  justice.  The  true  owner  might  enter  upon  a  disseisor. 
But  after  a  judgment  in  ejectment,  an  actual  entry  would  not  be  purraitted. 
Upon  this  reasoning  his  lordship  establishes  his  first  position.  That  Sir  Robert 
Atkyns  did  not  acquire,  by  his  entry,  an  actual  estate  of  freehold  by  disseisin. 
This  brought  his  lordship  to  the  second  question.  Whether  the  feoffment  to 
Earle  vested  an  estate  of  freehold  in  him  by  disseisin  ?  Here  his  lordship  con- 
cluded, from  the  principles  laid  down  by  him  in  his  discussion  of  the  first 
question,  that  the  feoffment  did  not  amount  to  an  actual  disseisin,  but  was  such 
merely  at  the  will  of  dame  Atkyns.  In  this  part  of  the  question  he  says,  that 
except  the  special  case  of  fines  with  proclamation,  which,  he  observed,  stands 
upon  distinct  grounds,  and  the  construction  of  the  stat.  of  4  Hen.  VII.  c.  24, 
for  the  sake  of  the  bar,  he  could  not  think  of  a  case  where  the  true  owner, 
whose  entry  is  not  taken  away,  might  not  elect,  by  choosing  a  possessory 
remedy,  to  be  deemed  as  not  having  been  disseised.  The  judges  of  the  king's 
bench,  in  the  opinion  delivered  by  them  in  1774,  express  themselves  still  more 
strongly  on  this  head.  They  say,  that  '*  where  the  books  speak  of  feoffments 
"  in  fee  by  tenants  for  years,  and  that  the  fee  simple  passes  thereby,  it  is  to 
"  be  understood  of  those  feoffments  of  old,  attended  with  livery,  and  actual 
"  transmutation  of  the  possession  from  one  man  to  another ;  that  feoffments, 
"  from  having  been  the  only  conveyance  of  land,  for  a  long  term  of  years, 
"  have  languished  into  mere  form,  and  are  nothing  now  more  than  a  common 
"conveyance;  that  their  grandeur  and  efficacy  is  lost;  and  that  without 
"actually  transferring  of  the  estate  from  one  man  to  another,  they  mix  with 
"  the  community  of  all  other  assurances  :  that  the  name  of  these  feoffments, 
"  and  the  remembrance  of  them,  remains,  and  survives  them,  however  imper- 
"  fectly,  after  the  practice  of  making  them,  and  consequently  their  solemnity, 

"ia 


330.  b.]      Of  Discontinuance.       L.  3.  C.  11.  Sect.  611. 

"  is  quite  at  an  end."  Lord  Mansfield  afterwards  considered  the  case  in  a 
third  point  of  view,  which  was,  That  a  tenant  in  tail  in  remainder  could  not, 
by  the  established  law  of  the  land,  suffer  a  common  recovery  without  the 
consent  and  concurrence  of  the  immediate  tenant  of  the  freehold.  Now,  says 
his  lordship,  the  law  will  never  permit  that  to  be  effected  by  wrong,  unfair,  or 
indirect  means,  which  cannot  be  effected  by  right,  fair,  and  direct  means :  but 
sir  Robert  could  not  by  right,  fair,  or  direct  means,  suffer  a  common  recovery 
in  the  life  of  dame  Ann,  without  her  concurrence;  he  never  had  her  concur- 
rence ;  it  follows,  that  his  recovery  must  have  been  covinous,  and  therefore 
void.  Upon  these  grounds,  the  court  were  of  opinion,  1st,  that  sir  Robert 
Atkyns  the  son  by  his  entry  under  the  verdict  in  1710,  was  not  an  actual 
disseisor,  and  therefore  had  not  in  him  any  actual  estate  of  freehold  :  2dly,  that 
his  feoffement  to  Earle  gave  Earle  an  estate  of  freehold  only  at  the  election  of 
dame  Atkyns,  but  did  not  give  him  an  actual  estate  of  freehold :  and,  3dly, 
that  the  whole  transaction  was  fraudulent,  and  therefore  void. — The  doctrine 
upon  which  the  first  of  these  points  turns  is  not  immediately  the  subject  of 
the  present  inquiry.  But  some  of  the  principles  laid  down  by  the  court  in 
giving  their  opinions  on  the  2d  and  3d  points  will  be  investigated  in  this  place. 

The  great  point  for  the  decision  of  the  court  was,  What  estate  in  the  lands  a 
feoffor  must  have  to  give  the  feoffment  efficacy. — It  seems  to  be  admitted  by 
the  court,  in  the  case  referred  to,  that,  originally,  no  greater  estate  was  re- 
quired to  be  in  the  feoffor  than  mere  possession.  This  they  attribute  to  the 
solemnities  originally  attending  both  the  admission  of  tenants  into  the  tenure, 
and  the  transfer  of  the  fee.  But  it  seems  to  be  their  opinion,  that,  since  most, 
if  not  all,  of  these  solemnities  have  been  dispensed  with,  the  peculiar  efiicacy 
of  a  feoffment  has  been  lost.  This  has  certainly  been  the  case  in  one  very 
remarkable  instance.  Lord  chief  baron  Gilbert,  in  his  Treatise  of  Tenures,  p.  43. 
observes,  that  lord  Coke  says,  ''  that  the  feoffee  of  the  disseisor  that  comes 
"  in  by  title,  after  a  year  and  a  day  was  expired,  was  anciently  held  to  have 
"  right  of  possession,  and  to  put  the  disseisee  to  his  writ  of  entry,  because  the 
"feoffee  came  in  by  title;  and  for  quiet  of  purchasers,  this  non-claim  for  a 
"year  and  a  day  was  held  a  dereliction.  Hence,  writs  of  entry  against  the 
"  feoffee  in  the  jL>er  and  cut.  But  this  was  not  held  so  in  respect  of  disseisors, 
"because  they  themselves  being  the  wrong-doers,  had  no  law  in  their  favour, 
"  lest  it  should  encourage  such  injuries.  But  afterwards,  as  feoffments  became 
"  more  secret,  and  nothing  paid  to  the  lord,  then  they  thought  it  too  hard  such . 
*'  feoffments  should  alter  the  right  of  possession,  and  therefore  they  con- 
"  strued  the  feoffee,  that  came  in  by  his  own  act,  to  be  a  wrong-doer,  and  not 
"  to  alter  the  right  of  possession;  but  the  heir,  for  the  reasons  aforesaid,  was 
"  left  as  before."  But  it  will  be  difficult  to  find  another  instance  in  which 
feoffments  have  lost  their  efiicacy.  The  arguments  brought  to  prove  that  they 
have  lost  their  efiicacy  in  creating  an  estate  of  freehold,  when  it  is  not  in  the 
feoffor  at  the  time  of  the  feoffment,  are,  1st,  that  livery  is  not  made  now  with 
the  solemnity  with  which  it  was  made  formerly  : — 2dly,  that  the  passages  in  the 
books  which  speak  of  feoffments  by  tenants  for  years,  and  bthers  having  estates 
less  than  freehold,  creating  estates  of  freehold  in  the  feoffee,  by  disseisin,  are  to 
be  understood  as  referring  only  to  a  disseisin  by  election. 

As  to  the  first  argument, — It  seems  to  be  everywhere  admitted,  that  the  feoff- 
ments we  are  speaking  oi,once  had  the  operation  and  efficacy  in  question;  and 
that  this  operation  and  efficacy  is  ascribed  to  them  in  numberless  passages  in 
our  law  bouks ;  so  that  the  great,  if  not  the  only,  difficulty  is  to  show,  that, 
at  the  time  when  it  is  universally  agreed  feoffments  had  this  operation  and 
efficacy,  they  were  made  with  no  other  forms  and  solemnities  than  those  with 
which  they  are  made  now.  It  is  certain,  that  the  custom  of  making  livery 
before  the  peers  of  the  court,  and  recording  the  entry  of  the  feoffee  in  the  re- 
cords of  the  lord's  court  (if  it  were  ever  absolutely  necessary),  was  dispensed 
with  very  soon  after  the  Conquest,  and  was  fallen  completely  into  disuse  at 

so 


L.  3.  C.  11.  Sect.  611.     Of  Discontinuance.        [330.  b. 

so  early  a  period  as  that  of  Henry  II. ;  so  that  in  this  reign,  and  from  thence 
to  the  present  time,  no  other  ceremony  in  making  feoifments  was  used  than 
that  which  is  now  practised,  of  the  feoffor  and  feoffee  coming  upon  the  hind, 
either  in  person  or  by  attorney,  and  there  the  feoff"or,  in  the  presence  of  wit- 
nesses (all  other  persons  being  out  of  the  land)  delivering  the  possession  of  it 
to  the  feoffee.  The  form  of  making  feoffments  in  the  reign  of  Henry  II.  is 
minutely  described  in  IJracton,  lib.  2.  cap.  18,  fol.  39.  b.  Item,  non  caht  donatio, 

nisi  suhseqtiatur  traditio, tunc  detnian,  cum  dona  tor  plenum  facer  it  seisinam 

donatorio per  se  si p>raisens  fnerit,  vel per procnratorem  &  literas,  si ahsensfuerit, 
ita  quod  c/iarta  donationis  &  litersepi'ocuratorias  coram  vicinis,  ad  hoc  specialiter 
convocatis,  legantur  in  jiublico,  &  etiam  cum  donator  corpore  &animo  recesserit  d 
possessione.  This  is  the  account  given  by  Bracton  of  the  mode  of  making 
feoflFments  in  his  time.  He  makes  no  mention  of  the  presence  of  the  jw/ys 
curiae  being  necessary;  or  of  its  being  necessary  to  record  the  entry  of  the 
feoff"ee  in  the  lord's  court;  or  of  any  other  ceremony  besides  those  now  practised. 
Hence  we  find  that  the  account  given  by  sir  William  Blaekstone,  book  2.  chap. 
20.  p.  309-315.  Archbold's  ed.  of  the  present  mode  of  making  feoffments, 
is  no  more  than  a  transcript  of  the  passage  cited  above  from  Bracton.  The 
next  thing  to  be  shown  is,  that  as  the  ceremony  of  making  feoff'ments  has  been 
the  same  during  all  this  period,  the  courts  of  judicature,  and  the  writers  upon 
our  laws,  have,  during  all  this  period,  agreed  in  ascribing  to  them  the  effect 
and  operation  in  question.  Their  language  in  this  respect  is  perfectly  uniform, 
that  no  freehold  is  required  in  the  feoffor,  and  that  however  tortious  or  slender 
his  possession  may  be,  his  feoffment,  necessarily  and  unavoidably,  gives  an 
estate  of  freehold  to  the  feoffee.  Nothing  can  be  more  decisive  on  this  subject 
than  the  following  passages  transcribed  from  Bracton  : — Poterit  axdem,  res  esse 
omnino  aliena  et  ex  toto,  quantum,  ad  jus  &  proprietatem,  &  feodum,  &  liherum 
tenementiim,  usum-fructuum,  &  nudum  iisum  ;  d^ aliquis p)Osuerit  se  in  scysinam, 
per  dissei/sinam,  vcl per  intrusionem,  cum  forte  invenerit  rem,  vacantem.  Et  si 
talis,  dum  ita  fiierit  in  seysina,  donationem  fecerit,  volebit  quantum  ad  ipsum, 
&  feoff  a  turn  simm,  &  alios,  qui  jus  non  hahent,  ut  prius  dictum  est,  donee  per 
ilium,  qui  jus  habet,  revocetur.  Item  poterit  esse  aliena,  quantum  ad  omnia 
prasdicta,  et  alicujus  in  possessione  existentis,  quoad  nudum  usum,  vel  quoad 
hoc,  quod  servitutem  habeat  in  re,  quoad  usum  fructuum  percipiendum,  sive  ad 
cerium  terminum  vel  ad  voluntatem.  Item  quoad  hoc,  quod  habeat  custodiam, 
vel  curam,vel  hujusmodi;  in  quibus  casibus,  si  dum  sic  fuerit  in  seysina ,  quali 
quali,  donationem  fecerit,  statim  fit  res  data  accipientis,  quoad  dantem  &  accl- 
pientem,&  qiLodd  alios,  qui  jus  non  habent.  Sed  quoad  vcrum  dominum,  nun- 
quam  erif  liberum  tenementum,  nisi  ex  lomja  iSs  pacifica  seysina,  &unde  si incon- 
tinenti post  tale  feoffamentum  2Msset  verus  dominus p)onere  sc  in  seysinam,  omiies 

quoscunque  tenere  j'osset  exclasos  d  possessione Sed  quid  dicetur  de  eo 

quinidlum  omnino  seisinam  habuit,  nee  aliquam  juris  sc  intillam,  si  donationem 
fecerit  de  re  quam  alius  tenet,  perse  ipsum  vel  per  alium  nomine  suo,  non  faciei 
rem  accipientis,  cum  ipse  nihil  teneat,  quia  non  potest  phts  juris  ad  alium 
transferre  quam  ipse  habet,  nee  jdus  valebit  ista  donatio  quam  valeret,  si  aliquis 
transiens  peraliquod  manerium  ab  aliquo  jwssessuiii,  diceret  socio  siio  viator i,  do 
tibi  tale  manerium  quod  talis  jMssidet,  quia  nihil  aliud  esset  dicere,  quam  dare 
ei  plenam  pujnatam  ex  nihilo,cum  jwssessio  non  sit  vacua.  Bract,  lib.  2.  c.  14. 
fol.  31.  a.  31.  b. — So  in  another  place:  Item  licet  liberum  tenementum  non 
habuerit,  donationem  potest  facere  quis,  dum  tamen  in  seisina  fuerit  cdiqud 
justa  de  causd,  sicut  ad  terminum  annorum,  vel  ratione  custodia-.  Idem  erif, 
si  nullam  justam  causam  habuerit,  ut  si  per  intrusionem  vel  disseisinam  ;  et 
cum  sit  in  seisina  alijs  donare  poterit,  licet  non  cum  effectu  et  aliis  per  donatio- 
nem facere  liberum  tenementum,  quod  quidem  ipse  non  habuerit. — Ibid.  lib.  2. 
c.  5.  §4.  fol.  11.  b. — It  socms  to  be  clear  from  these  passages,  that  in  Bracton's 
time,  every  person  who  had  the  possession,  however  slender  his  possession  might 
be,  as  termor  for  years,  tenant  at  will,  or  guardian ;  or  however  tortious  his 

possession 


330.  b.]        Of  Discontinuance.      L.  3.  C.  11.  Sect.  611. 

possession  might  be,  as  a  disseisor  or  intruder;  was  nevertheless  considered  to 
be  in  the  seisin  of  the  fee,  and  might  by  livery  transfer  it  to  another.  Bracton 
frequently  repeats  this  doctrine,  and  illustrates  it  by  many  examples  in  the 
course  of  the  second  book. — Such  is  the  account  given  by  Bracton  of  the  ope- 
ration of  feoffments  ;  and  as  the  account  given  by  him  of  \.\iq  form  of  feoffments 
has  been  contrasted  with  the  account  given  of  it  by  sir  William  Blackstone, 
t'.ie  reader  is  desired  to  contrast  the  above  account  given  by  him  of  the  operation 
of  feoffments  with  the  account  given  of  it  by  sir  Edward  Coke,  ant.  48.  b.  and 
49.  a.  He  expresses  himself  to  the  same  effect  in  his  2d  Inst.  fol.  413.  Com- 
menting on  the  statute  of  Westminster  2.  cap.  25,  he  observes,  that  though  the 
act  speaks  of  an  alienation  by  feoffment  by  a  tenant  for  years,  yet  it  extends 
to  tenants  by  statute-merchant,  statute-staple,  tenant  at  will,  and  tenant  by 
sufferance ;  because  all  these  have  a  possession.  But  he  observes,  that  it  is 
otherwise  of  a  bailiff,  for  he  has  no  possession  at  all. — Several  other  authorities 
will  be  offered  to  prove  this  point  in  a  subsequent  part  of  this  note ;  one  more 
authority  only  shall  be  mentioned  here.  Mr.  Kuowler,  in  his  argument  for 
the  defendant  in  the  case  above  referred  to,  seems,  with  reason,  to  lay  great 
stress  upon  it.  It  is  10  Ed.  IV.  8,  9.  In  trespass,  the  defendant  said,  that 
one  M.  was  seised  in  his  demesne  as  of  fee,  and  leased  to  him  for  his  life.  The 
plaintiff  said,  that  long  before  M.  had  any  thing  in  the  land,  D.  was  seised  in 
fee,  and  leased  to  E.  for  life;  that  D.  died,  and  thereupon  the  reversion  de- 
scended upon  Jane  his  daughter,  who  married  31.;  that  M.  granted  the  rever- 
sion to  the  defendant  for  life;  that  the  tenant  attorned;  that  M.  died,  and 
then  Jane  granted  the  reversion  to  the  plaintiff,  and  the  tenant  attorned ; 
whereupon  he  (the  plaintiff)  entered,  and  was  seised  till  the  defendant  made 
the  trespass  without  this,  that  M.  whom  the  defendant  supposes  to  have  leased 
to  him,  was  seised  in  his  demesne  as  of  fee.  It  is  to  be  observed,  that  the 
leases  mentioned  here,  being  for  lives,  were  necessarily  created  by  hvery.  The 
question  before  the  court  therefore  was,  Whether  want  of  seisin  in  a  feoffor 
was  a  good  plea?  All  the  judges  held  it  was  not;  and  that  the  plaintiff  should 
have  pleaded  generally  ne  lessa  pas.  And  Littleton  expressly  says,  that  if  a 
man  pleads  a  feoffment,  it  is  no  plea  to  say  that  the  feoffor  had  nothing  at  the 
time ;  he  can  only  plead  n' enfeoff  a  pas. — Here  then  we  have  the  most  decisive 
evidence,  that  from  the  reign  of  Henry  II.  to  the  present  time,  the  courts  of 
judicature  and  th^  writings  of  the  professors  of  the  law  are  perfectly  agreed, 
in  considering  feoffments  as  made  with  the  same  ceremonies,  and  attended  with 
the  same  efficacy  and  operation.  It  follows  from  this,  that  it  can  be  no  argu- 
ment against  their  having  the  efficacy  and  operation  contended  for  in  the  par- 
ticular instances  now  in  question — that  at  a  period  anterior  to  that  mentioned 
here,  they  were  made  (if  that  really  was  the  case)  with  more  notoriety  and 
ceremony  than  they  are  now. 

As  to  the  second  argument, — That  the  passages  in  the  books  which  speak  of 
tenants  for  years  and  others  having  estates  less  than  of  freehold,  creating 
estates  of  freehold  in  the  feoffee  by  disseisin,  are  to  be  understood  as  referring 
only  to  a  disseisin  by  election  ; — lord  Mansfield,  on  his  entering  into  this  part  of 
the  argument,  observes,  that  the  precise  definition  of  what  constituted  that  dis- 
seisin, which  made  the  disseisor  the  tenant  to  the  demandant's  jtrcecipe, 
though  the  right  owner's  entry  was  not  taken  away,  was  once  well  known, 
but  that  it  is  not  now  to  be  found.  Most  unquestionably  there  are  many 
cases  in  which  it  would  now  be  difficult,  perhaps  impossible,  to  say  with 
certainty,  whether  they  amounted  to  an  actual  disseisin,  according  to  the 
doctrine  of  the  old  law ;  yet  surely  many  cases  may  be  stated,  which  by  the 
most  conclusive  and  satisfactory  reasoning  may  be  shown  to  be  actual  dis- 
seisins, according  to  that  law.  Perhaps  the  following  observations  may  serve 
to  establish  a  general  rule  for  distinguishing  those  acts  which  amount  to  actual 
disseisins,  from  those  which  are  such  only  at  the  election  of  the  party.  By 
a  disseisin  at  the  election  of  the  party,  is  not  to  be  understood  an  act  which  in 
itself  is  a  disseisin,  but  which  the  party  supposed  to  be  disseised,  may,  if  he 

pleases, 


L.  3.  C.  11.  Sect.  611.       Of  Discontinuance.       [330.  h. 

pleases,  consider  as  not  amounting  to  a  disseisin:  on  the  contrary,  every  act 
which  is  susceptible  of  being  made  a  disseisin  by  election,  is  no  disseisin  till 
the  party  in  question,  by  his  election,  makes  it  such.     It  follows  therefore,  that 
every  act  which  is  said  by  the  writers  to  produce  an  immediate  disseisin,  ne- 
cessarily implies  an  actual  disseisin.     Now  we  find,  that  the  disseisins  produced 
by  feoft'ments  instantly  gave  the  feoffee,  against  every  person  but  the  disseisee, 
an  immediate  estate  of  freehold,  with  all  the  rights  and  incidents  annexed  to  it. 
To  this  effect  Bracton  writes,  lib.  2.  ch.  5.  §  3.  fol.  11.  b.  Item  valida poterit  esse 
donatio  statim  ab  initio  inter  quasdam pers mas,  et  invalida  etsiispensa  quantum 
ad  alias  per sonas,  vt  si  quis  rem  alienam  dederit  alicui,  ut  supra  dictum  est. 
Hence  we  find  every  where,  that  the  wife  of  the  feoffee  became  immediately  en- 
titled  to  her  dower;  the  husband  of  the  feoffee  became  immediately  entitled  to  his 
curtesy;  and  the  descent  upon  the  heir  of  the  feoffee  immediately  took  away  the 
entry  of  the  disseisee.     This  is  the  constant  language  of  the  books,  when  they 
speak  generally  of  disseisins.     Now  the  books  make  no  difference,  whether  the 
feoffment  is  made  by  a  person  seised  of  an  estate  of  freehold,  or  by  a  person 
having  only  the  bare  possession  as  tenant  for  years,  at  will,  or  by  sufferance. 
The  description  given  by  Bracton  in  the  passages  cited  from  him,  answers  every 
notion  given  by  lord  Mansfield  of  an  actual  disseisin.     Bracton  says,  that  im- 
mediately upon  the  feoffment  the  estate  becomes  the  property  of  the  feoffee, 
as  between  him  and  the  feoffor,  and  every  other  person,  except  the  rightful 
owner,  that  a  long  and   uninterrupted   possession  of  a  certain  duration,  will 
make  the  title  of  the  feoffee  good  even  against  the  rightful  owner;  that,  to 
prevent  this,  the  donor  must  restore  his  own  seisin. — Here  then  is  what  his 
lordship  so  justly  considered  as  necessarily  requisite  to  form  an  actual  disseisin — 
a  person  who  has  expelled  the  tenant  from   his  fee,  and   usurped  his  feudal 
place  and  relation;  a  tenant  to  the  pracipe  of  every  demandant,  though  the 
true  owner's  right  of  entry  upon  him  is  not  taken  away.     If  the  feoffee  in  this 
case  were  only  a  disseisor  at  the  election  of  the  disseisee,  it  would  follow,  that 
lie  was  not  a  deisseisor  till  the  right  owner  made  him  such  by  his  election,  and 
therefore,  that  the  fee  would  not  be  in  him,  if  the  rightful  owner  did  not  elect 
to  make  him  a  disseisor.     According  to  this  doctrine,  if  the  feoffee  of  tenant 
for  years,  or  any  other  person  making  a  feoffment  without  an  estate  of  free- 
hold in  him,  did  in  the  life  of  the  rightful  owner  of  the  estate,  the  estate  would 
not  be  subject  to  dower  or  curtesy,  nor  would  the  entry  of  the  rightful  owner 
be  taken  away.     But  we  find,  that  in  all  cases  in  which  our  law-writers  treat 
of  disseisins  made  by  feoffments,  they  consider  it  as  a  matter  ot  course,  that 
tlie  estate  of  the  feoffee,  immediately  became  an  estate  of  freehold,  Avith  all 
the  qualities  and  rights  of  a  freehold  estate  annexed  to  it.     A  similar  argument 
lies  from  the  relation  in  which  such  a  feoffee  stood  with  respect  to  strangers. 
Bracton  observes,  that  he  immediately  acquired  the  seisin  of  the  fee  as  against 
strangers;  which  could  not  be,  if  he  were  only  a  disseisor  at  the  election  of 
the  party.     It  has  been  observed  before,  that  the  books  make  no  difference 
between  feoffments  made  by  persons  having  estates  of  freehold,  and  feoffments 
made  by  persons  having  estates  less  than  freehold.     Bracton  expressly  mentions 
guardians,  tenants  for  years,  by  sufferance,  at  will,  by  disseisin,  or  intrusion, 
as  persons  whose  feoffments   are  attended  with   the  effect  described  above. 
So  does  sir  Edward  Coke,  in  the  passage  cited  from  the  second  Institute.     So 
Perkins,  sect.  222.     "  If  lessee  for  years  enfeoff  a  stranger,  the  lessor  being 
"upon  the  land,  yet  the  land  shall  pass  by  the  feoffment;  but  perhaps,  if  he 
"  continues  upon  the  land,  claiming  the  same  after  the  feoffment,  this  counter- 
"  vails   an   entry  for  a  forfeiture;  and  the  reason   why  it  passed  b}'  such  a 
"  feoffment,  is  because  the  lessor  had  nothing  to  do,  to  meddle  with  the  pos- 
"  session  of  the  land  during  the  term."     So  Dyer,  3G2.  b.     A  termor  for 
1,000  years  made  a  feoffment,  by  the  words  dedi,  cotiressi,  et  fvoffavi.     It  was 
made  a  doubt,  whether  the  lands  passed  by  the  feoffment,  so  that  the  lessor 
might  enter  for  the  forfeiture;  or  whether  the  term  passed  by  the  first  words. 
The  very  doubt  shows  that  it  was  taken  for  granted,  that  without  those  words 

the 


330.  b.]       Of  Discontinuance.       L.  3.  C.  11.  Sect.  611. 

the  freehold  would  vest  in  the  feoffee.  In  the  margin  of  that  case,  in  the  edition 
of  1688,  it  is  said,  that  in  the  case  of  Read  and  Morpeth  v.  Errington  (reported 
in  Cro.  Eliz.  821.)  it  was  held,  that  the  lessee  for  years  might  make  a  feoffment, 
notwithstanding  the  presence  of  the  lessor;  and  that  it  was  a  forfeiture  of  the 
lease;  for  though  the  lessee  had  the  possession  and  might  dispose  of  it,  yet  the 
lessor  might  enter  for  the  forfeiture.  Thus,  in  the  case  of  Blundell  v.  Baugh, 
sir  "William  Jones,  315.  the  judges  held,  that  when  tenant  at  will  makes  a  lease 
for  years  rendering  rent,  and  the  lessee  enters  and  pays  rent,  there  is  no  disseisin, 
but  at  the  election  of  the  first  lessor;  for,  say  they,  it  never  shall  be  a  disseisin, 
unless  there  be  the  claim  of  a  stranger  by  entry  to  have  the  freehold,  or  unless 
the  owner  of  the  land  waves  the  occupation  of  the  land,  or  brings  an  action,  or 
otherwise  declares  his  intention  that  he  takes  it  by  disseisin.  Here  the  two 
kinds  of  disseisin  are  contrasted  in  the  most  direct  and  positive  manner.  The 
judges  also,  in  the  case  of  Blundell  v.  Baugh,  cited  Mathew  Taylor's  case, 
34  Eliz.  C.  B.  Tenant  at  will,  or  for  years,  makes  a  feoffment  in  fee,  and  dies, 
his  wife  brings  dower  against  the  feoffee,  who  pleaded  ne  unque  seisie  qiie  dower : 
but  the  whole  court  was  against  him ;  for  in  the  instant  the  fee  was  gained.  In 
Cro.  Jac.  615.  and  ant.  31.  b.  that  doctrine  is  controverted,  on  the  ground  that 
the  seisin  of  the  feoffor  was  but  momentary :  but  this  proves  the  position  at- 
tempted to  be  established  here ;  for  if  the  feoffment  in  this  case  only  gave  a  free- 
hold at  the  election  of  the  reversiouer,  the  feoffor  had  no  seisin.  The  same  doc- 
trine seems  to  be  laid  down  very  expressly  by  lord  Hardwicke,  2  Ves.  sen.  481. 
Having  occasion  to  mention  a  fine  levied  by  tenant  at  will,  he  says,  "If  they 
"  meant  a  wrong  thereby,  they  must  have  taken  another  method;  as  this  could 
"  not  work  a  disseisin  on  the  trustees,  and  turn  their  estate  to  a  right,  while 
"  they  were  tenants  at  will  to  the  trustees.  This  way  indeed  they  might 
"  do  it,  according  to  the  distinction  taken  in  several  cases,  particularly  in 
"Dormer  and  Parkhurst,  if  they  executed  a  feoffment  on  the  land;  because 
"  it  is  a  feoffment  on  livery,  which  is  a  notoriety  to  the  trustees,  and  puts  it 
'•'on  them  to  make  entry  to  avoid."  In  the  same  manner,  3  Atk.  339.  his 
lordship  says,  "  If  a  man  enters  on  my  tenant,  he  does  not  gain  such  a  pos- 
"  sesion  to  levy  a  fine  thereon,  unless  he  continues  in  possession;  for  a  wrong- 
"  doer  to  gain  a  possession  by  disseisin,  must  not  step  on  the  land,  and 
"  withdraw  and  leave  the  rightful  owner  in  possession,  which  would  be 
"  sufficient  to  gain  a  seisin  on  a  feoffment,  but  not  to  levy  a  fine." — In  every 
stage  of  our  law,  the  most  modern  as  well  as  the  most  ancient,  the  peculiar 
operation  of  a  feoffment,  as  to  the  divesting  of  estates,  destruction  of  con- 
tingent remainders,  and  extinction  of  powers,  has  been  recognized.  Citations 
and  arguments  to  prove  the  point  before  us  might  be  easily  multiplied;  but 
they  shall  be  concluded  here,  by  some  observations  upon  the  allowed  effect  of 
a  fine  levied  by  a  tenant  for  years,  or  even  by  a  tenant  at  sufferance,  who  has 
previously  made  a  feoffment.  No  point  of  our  law  is  more  clearly  settled,  than 
that,  unless  some  one  of  the  parties  to  a  fine  has  an  estate  of  freehold  in  the 
lands,  of  which  it  is  levied,  it  is  totally  voide,  as  to  all  strangers,  and  may  be 
avoided  at  any  time  by  the  plea,  quod  jxirtes  finis  nihil  hahuerunt.  Now,  sup- 
posing a  tenant  for  years  to  make  a  feoffment,  and  the  feoffee  afterwards  to 
levy  a  fine,  it  is  clear  that  the  fine  would  be  without  effect,  unless  the  feoffment 
gave  him  an  estate  of  freehold.  In  the  case  of  Whaley  v.  Tancred,  1  Vent.  241. 
sir  Thomas  Raymond,  219.  2  Lev.  52.  it  was  settled,  that  where  a  fine  is 
levied  in  this  manner,  the  fine  will  bar  the  lessor  at  the  end  of  five  years  after 
the  expiration  of  the  term.  This  would  never  be  the  case  unless  the  feoffment 
had  previously  created  an  estate  of  freehold. — In  the  case  of  Doe  v.  Prosser, 
Cowp.  217.  lord  Mansfield  expressed  himself  as  follows: — "It  is  very  true  that 
"  I  told  the  jury,  they  were  warranted  by  the  length  of  time  in  this  case,  to 
"  presume  an  adverse  possession  and  ouster  by  one  of  the  tenants  in  common, 
"  of  his  companion ;  and  I  continue  still  of  the  same  opinion.  Some  ambiguity 
"  seems  to  have  arisen  from  the  term  "  actual  ouster,"  as  if  it  meant  some  act 
"  accompanied  by  real  force,  and  as  if  a  turning  out  by  the  shoulders  were 

"  necessary. 


L.  3.  C.  11.  Sect.  611.    Of  Discontinuance.         [330.  b. 

"  necessary.  But  that  is  not  so .  A  man  may  come  in  by  a  rightful  posses- 
"  sion,  and  yet  hold  over  adversely  without  a  title.  If  he  does,"such  holding 
"  over  under  circumstances  will  be  equivalent  to  an  adnrd ouster.  For  instance, 
"  length  of  possession  during  a  particular  estate,  as  a  term  of  one  thousand 
*'  years,  or  under  a  lease  for  lives,  as  long  as  the  lives  are  in  being,  gives  no 
"  title.  But  if  tenant  ^;Hra?<^/-e  vie  hold  over  for  twenty  years  after  the  death 
*'  of  eeshiy  que  vie,  such  holding  over  will  in  ejectment  he  a  complete  bar  to  the 
"  remainder-man  or  reversioner;  because  it  was  adverse  to  his  title.  So  in  the 
"  case  of  tenants  in  common  :  the  possession  of  one  tenant  in  common,  eo 
"  7ioi)iine,  as  tenant  in  common,  can  never  bar  his  companion  ;  because  such  pos- 
"  session  is  not  adverse  to  the  right  of  his  companion,  but  in  support  of  their 
*'  common  title;  and  by  paying  him  his  share,  he  acknowledged  him  co-tenant : 
"  nor  indeed  is  a  refusal  to  pay  of  itself  sufficient,  icitlioat  denyimj  his  title. 
"  But  if  upon  demand  by  the  co-tenant  of  his  moiety,  the  other  denies  to  pay, 
"  and  denies  his  title,  saying  he  claims  the  whole  and  will  not  pay,  and  continues 
"  in  possession,  such  possession  is  adverse  and  onster  enough."  By  the  adverse 
possession  mentioned  iu  this  case,  his  lordship  never  could  mean  a  disseisin  at 
the  election  of  the  party.  What  is  there  to  distinguish  it  from  an  actual  dis- 
seisin ? — Upon  the  whole,  therefore,  it  is  submitted  to  the  learned  reader's  con- 
sideration, 1st,  that,  as  feoffments  have  not  been  made  from  the  reign  of  Henrv 
the  '2d.  to  the  present  time,  with  any  other  solemnities  than  thosewith  which 
they  are  made  at  present,  every  operation  and  efficacy  which  has  been  con- 
stant y  and  uniformly  allowed  or  ascribed  to  them  by  the  courts  of  judicature, 
or  writers  of  authority  cotemporary  with  or  subsequent  to  that  monarch's  reign, 
down  to  the  present  time,  ought,  notwithstanding  the  objection  that  they  are 
not  now  made  with  some  of  the  solemnities  with  which  they  are  said  to  have 
been  made  in  their  very  earliest  institution,  to  be  allowed  and  ascribed  to  them 
now;  -Idly,  that  by  the  passage  cited  from  Bracton,  and  the  other  authorities 
cited  or  referred  to  in  the  course  of  this  note,  it  appears,  that  the  disseisin  pro- 
duced by  feoffments  must  be  understood  to  be  an  actual  disseisin,  and  not  a 
disseisin  merely  at  the  election  of  the  party  ;  odly,  that  in  many  of  these  autho- 
rities it  is  most  expressly  mentioned,  and  that  in  all  of  them  it  must  be  implied, 
that  however  slender,  bare,  or  tortious,  the  possession  of  the  feoffor  is,  his  feoff- 
ment necessarily  and  unavoidably  vests  the  freehold  in  the  feoffee,  till  the  dis- 
seisee by  entry  or  action  restores  his  possession ;  ifhly,  (to  apply  this  abstruse 
and  autKiuated  learning  to  the  present  subject-matter  of  business)  that  copy- 
holders, tenants  for  years,  by  elegit,  statute-merchant,  statute-staple,  at  will,  or 
by  sufferance,  are  all  considered  to  have  the  possession  of  the  estate,  and  that 
they  may  by  feoffment  vest  an  actual  estate  of  freehold  in  the  feoffee :  btJdy, 
that  a  tine  may  be  levied  of,  or  a  common  recovery  suffered  upon,  this  estate  of 
freehold  ;  Qthly,  that  the  feoffment  so  executed,  the  fine  so  levied,  and  the  reco- 
very so  suffered,  are  immediately  good  against  every  person  except  the  right- 
ful owner ;  and  Ithly,  that  in  process  of  time  they  become  good  against  the 
owner  himself. — -To  ascertain  the  exact  period  of  time  when  such  feoffments, 
fines  and  recoveries,  will  be  a  bar  to  the  rightful  owjier,  would  be  too  great  aa 
exrension  of  this  uotd,  the  length  of  which  already  rccjuires  an  apology. 

As  to  (he  opinion  of  the  court. — That  the  feoftinent  of  sir  llobert  Atkyns  wag 
f.juiided  in  fraud,  and  was  therefore  void;  it  is  to  be  observed,  that  however 
that  reasoning  applied  to  the  particular  case  before  the  court,  it  does  not  apply- 
to  the  general  question  discussed  in  this  note,  which  presupposes  previous  pos- 
session in  the  feoft'er,  free  from  every  circumstance  of  fraud ;  either  fair  and 
innocent,  or  acquired  by  the  open  and  notorious  circumstance  of  disseisin, 
abatement,  intrusion,  or  deforcement.  Sir  Robert  Atkyns  acquired  his  pos- 
session by  the  entry  made  by  him  under  the  verdict  obtained  by  him  in  1710. 
He  lost  it  by  the  verdict  given  for  dame  Ann  Atkyns  in  1712.  It  may,  there- 
fore, be  said  (and  the  fact  really  was),  that  he  obtained  the  verdict  given  for 
him  in  1710,  and  consequently  the  possession  under  it,  by  a  }yretended  title. 
He  had  not  a  fair  or  inuoceut  possession.     He  did  not  acquire  his  possession 

by 

YOL.  II.— %1 


330.  b.]         Of  Discontinuance.     L.  3.  C.  11.  Sect.  612. 


Sect.  612. 

A  LSO,  if  tenant  in  taile  grant  his  land  to  another  for  terme  of  the 

life  of  the  said  tenant  in  taile,  and  deliver  to  him  seisin,  <j'c.  and 

after  by  his  deed  he  releaseth  to   the   tenant  and  to  his  heires  all  the 

right 

by  disseisin,  intrusion,  abatement,  or  deforcement ;  it  did  not  descend  upon  him  ; 
it  did  not  come  to  him  by  act  of  law ;  he  was  not  in  the  seisin  of  the  fee  by 
virtue  of  any  gift  or  demise  from  the  freeholder:  he  obtained  his  possession  by 
the  judgment  of  a  court  of  law,  under  the  colour  of  a  pretended  title.     Thus, 
in  the  language  of  the  law,  his  original  possession  was  founded  in  fraud,  prac- 
tice, and  stratagem.     And    to  use  an   expression  of  the  judges,  3  Rep.  78.  a. 
"  the  common  law  does  so  abhor  fraud  and  covin,  that  all  acts,  as  well  judicial 
•'  as  others,  which  of  themselves  are  just  and  lawful,  yet  being  mixed  with  fraud 
"  and   deceit,  are   in  judgment   of  law  wrongful  and    unlawful." — From  the 
reports  of  the  case  of  Taylor  v.  Horde,  it  appenrs   that  lord  Mansfield   laid 
great  stress  on  the  resolutions  of  the  judges  in  Fermor's  case.     In  this  case, 
Thomas  Smith  being  seised  in  fee   of  several   lands,  and   holding  others  by 
copy  of  court  roll,  and  others  for  a  term  of  years,  and  others  at  will  (all  of 
them  lying  in  the  same  vill),  made  a  feoffment  with  livery  of  all  those  held 
by  copy,  for  years,  and  at  will,  to  one  Chappell,  for  life,  and  afterwards  levied 
a  fine.     The  question  was,  Whether  the  fine  was  a  bar  to  the  owners  of  the 
fee,  at  the  expiration   of  the   first  five  years  ?  It  appeared  that  Smith  con- 
tinued in  possession  of  the  land,  and  paid  the  rents.     See  3  Rep.  77.  2  Ander- 
son, 176.     Gary,  20.     The  judges  were  of  opinion,  that  the  feoffment  was 
fraudulent.     Upon  an  examination  of  the  different  reports  of  the  case,  it  will  be 
found,  that  his  atntinuingin  the  posseKsiori  of  the  land,  and  jx/i/ing  rent  after  he 
made  the  feoffment,  were  the  chief  circumstances  which  induced  the  court  to 
consider  the  feoffment  to  be  fraudulent.       The  same  may  be  observed  of  the 
case  of  White  v.  Bacon,  Saville,  126.     The  coutinuing  in  the  possession  of  the 
land  after  the  conveyance  has  always  been  considered  iu  our  law  as  a  badge  of 
fraud.     Fernon's  case  therefore  only  proves,  that  if  a  tenant  for  years,  after 
making  a  feoffment,  continues  in  the  possession  of  the  land,  and  pays  rent  for 
it,  the  possession  acquired  by  him  under  the  feoflTment  is  fraudulent ;  and  there- 
fore a  fine,  and  every  other  act  which  derives  its  effect  from  that  possession,  is 
void.     But  Fernon's  case  does  not  apply  to  the  general  question,  of  the  opera- 
tion of  a  fine  levied  by  tenant  for  years,  who  has  previously  executed  a  feofl'mcnt, 
when  the  case  is  not  affected  by  circumstances  of  fraud.     The  case  mentioned 
before  in  this  note  of  Whaley  v.  Tancred  is  directly  in  point,  that  a  tine  so  levied 
by  lessee  for  years  is  a  bar  to  the  lessor  after  five  years  from  the  expiration  of 
the  lease.     And  with  respect  to  the  feoffor's  remaining  in  the  possession,  if  by 
the  deed  declaring  the  uses  of  the  fine  it  is  expressed  that  the  tine  should  enure 
to  his  use,  the  posession  will  be  invested  in  him  by  the  statute  of  uses. — The 
editor  begs  to  conclude  with  an  observation  of  lord  Hardwicke  (2  Atk.  631.) 
which  seems  to  him  to  sanction,  in  some  measure,  the  general  reasoning  con- 
tained in  this  note  : — "  If  it  is  a  mere  legal  title,  and  a  man  has  purchased  an 
*'  estate  which  he  sees  himself  has  a  defect  upon  the  face  of  the  deeds, yet  the 
"  fine  will  be  a  bar,  and  not  affect  him  with  notice  so  as  to  make  him  a  trustee 
"  for  the  person  who  had  the  right,  because  this  would  be  carrying  it  much  too 
<'  far ;  for  the  defect  upon  the  face  of  the  deeds  is  often   the  occasion  of  the 
"  tines  being  levied."     The  doctrine  contended  for  in  this  note  seems  to  the 
editor  to  receive  some  countenance  from  the  arguments  and  conditions  in  Good- 
right  V.  Forrester,  8  East's  Reports,  552. — [Note  285.] 


L.  3.  C.  11.  Sect.  613.    Of  Discontinuance.        [331.  a. 

t 331.1  ]g^^  right  which  hee  hath  in  the  same  land  ;  in  this  case  the 
^-     J  estate  of  the  tenant  of  the  land  is  not  enlarged  hy  force  of  such 
release  for  that  when  the  tenant  had  the  estate  in  the  land  for 
term  of  the  life  of  the  tenant  in  tail,  hee  had  then  all  the  right  which 
tenant  in  tail  could  rightfully  grant  or  release  *  ;  so  as  hy  this  release 
no  right  passeth,  inasmuch  as  his  right  was  gone  before. 


Sect.  613.  i\f--tr- 

ALSO,  if  tenant  in  taile  hy  his  deed  grant  to  another  all  his  estate 
which  he  hath  in  the  tenements  to  him  entailed,  to  have  and  to  hold 
all  his  estate  to  the  othet,  and  to  his  heires  for  ever,  and  deliver  to  him 
seisin  accordingly  ;  in  this  case  the  tenant  to  whom  the  alienation  was 
made  hath  no  other  estate  hut  for  terme  of  the  life  of  tenant  in  taile. 
And  so  it  may  hee  well  proved  that  tenant  in  taile  cannot  grant  nor 
alien,  nor  make  any  rightfull  estate  of  freehold  to  another  person,  hut 
for  terme  of  his  owne  life  only,  ^c.  (1) 

THE 
*  <Src.  added  in  L.  and  M.  and  Roh. 

(1)  The  livery,  in  this  case,  is  secundum  formam  cliarta; ;  and  therefore, 
according  to  sir  Edward  Coke's  doctrine,  ante  48.  a.  its  operation  and  eiFect 
are  restrained  to  the  quantity  and  quality  of  the  eifectual  estate  contained  in 
the  deed.     Thus,  says  he,  if  a  man  makes  a  lease  for  yeares  by  deed,  and  delivers 
seisin  according  to  the  form  and  eifect  of  the  deed,  yet  he  has  but  an  estate 
for  years,  and  the  livery  is  void.    .The  expression  in  the  text,  that  the  tenant  in 
tail  cannot  grant,  or  alien,  or  make  any  rightful  estate  of  freehold  to  another 
person,  but  for  the  terra  of  his  own  life,  is  not  to  be  understood  literally, 
that  the  grantee  has  but  an  estate  for  life,  and  that  his  estate  is  ipso  facto  de- 
termined by  the  death  of  the  tenant  in  tail :  all  that  is  meant  by  it  is,  that 
his  estate  is  certain  and  indefeasible,  no  longer  than  the   life  of  the  tenant  in 
tail  ;  for  upon  the  death  of  the  tenant  in   tail,  it  is  defeasible   by   the  issue, 
either  by  action,  or  by  entry  or  claim  on  the  land,  at  his  election.     Still  it  has 
a  continuance  till  it  is  so  defeated  by  the  issue.     In  note  1,  ante  326.  b.  it  has 
been  explained  upon  what  principle,  in  the  case  of  a  tenant  in  tail  conveying  by 
feoffment,  it  was  held,  that  the  statute  de  Jonis  did  not  absolutely  nullify  the 
alienation,  but  only  took  away  the  entry  of  the  issue,  and  reduced  him  to  his 
remedy  by  formedon.     Upon  similar  principles,  in  the  case  of  a  tenant  in  tail 
conveying  by  bargain  and  sale,  release,  covenant  to  stand  seised,  or  any  other 
mode  of  conveyance  operating  by  way  of  grant,  it  has  been  held  that  the  sta- 
tute docs  not  nullify  the  conveyance,  but  reduces  the  issue  in  tail  to  his  entry ; 
or,  if  he  prefers  it,  to  his  action  to  avoid  it.    Thus,  the  grantee  hath  a  base  fee; 
his  wife  is  entitled  to  her  dower  during  the  continuance  of  the  fee ;  and  if  the 
grantee  commits  waste,  the  tenant  in  tail,  having  no  reversion,  has  no  right  of 
action    against  him.     3  Hep.   84.   b.     10  Hep.  96.     See  Machel  v.  Clarke, 
2  Salk.  019.  Farresley,  18.  Cora.  119.  2  Lord  Raym.  778.    Uoodriglit  on  the 
demise  of  Tyrrell  o.  iMead  and  Shilson,  3  Burr.  1703.     The  passage,  therefore, 
in  Littleton  must  be  understood,  in  this  (jualified  sense,  otherwise  it  is  inaccu- 
rate.    This  was  observed  by  lord  chief  j\istice  Holt  in  the  case  of  ^Machel  v. 
Clarke,  and  by  lord   chief  justice   llobart  in  the  case   of  Sheffield  v.  Katcliff, 
Hob.  Hep.  338,  339.— [Note  280.] 


331.  a.  331.  b.]  Of  Discontinuance.  L.  3.  C.  11.  Sect.  614. 

(Post.  342.  b.        ^PHE  meaning  of  Littleton  in  both  these  cases,  in  this  and  in 

345.  a.  i    the  Section  next  preceding  is,  that  having  regard  to  the  issue 

Aut.  263.  b.)         -j^  taile,  and  to  them  in  reversion  or  remainder,  tenant  in  taile 

cannot  lawfully  make  a  greater  estate  than  for  terme  of  his  life ; 

and  therefore  this  release  or  grant  is  no  discontinuance.     But  in 

regard  to  himselfe,  this  release  or  grant  leaveth  no  reversion  in 

13  H.  7. 10.  a.      him,  but  puts  the  same  in  abeiance,  so  as  after  this  release  or 

Brooke,  jrrant  made  he  shall  not  have  any  action  of  waste,  &c. 

Rflease,  95.  ° 

"  Grant  to  anotlier  all  Ms  estate."  Vkl  Sect.  650.  Action  of 
waste,  &c.  there  is  implied  that  he  shall  not  enter  for  a  forfeiture, 
if  after  the  release  or  grant  the  lessee  maketh  a  feoflfment  in  fee. 


Sect.  614. 

fPOB  if  I  give  land  to  a  man  in  taile,  saving  the  reversion  to  my  self e, 
a7id  after  the  tenant  in  taile  enfeoff eth  another  in  fee,  the  feoffee  hath 
no  rightfull  estates  in  the  tenements  for  two  causes.  One  is,  for  that  by 
such  feoffment  my  reversion  is  discontinued,  the  ivhich  is  a  ivrong  and 
not  a  rightfull  act.  Another  cause  is,  if  the  tenant  in  taile  dieth,  and 
his  issue  bring  a  writ  o/formedon  against  the  feoffee,  the  tvrit  and  also 
the  declaration  shall  say,  ^e.  that  the  feoffee  by  wrong  him  deforces,  ^c. 
Ergo  if  he  deforceth  him  by  wrong,  he  hath  no  right  estate. 

HERE  Littleton  proveth,  that  the  feoffee  of  tenant 
^_  ^..  „ ,  in  taile  hath  no  rightfull  estate,  having  0^  respect   ['331. "I 

to  two  persons  ;  the  one  is  to  the  donor,  whose  rever-    L     l^-     J 

sion  is  divested  and  displaced ;  and  the  other  to  the 

issue  in  taile,  who  is  driven  to  his  action  to  recover  his  right. 

[»]  Brnct.  li.  4.  "  By  icrong  hhn  deforces."    [?;]  Deforciare  is  a  word  of  art, 

ful.  23S.    Flet.     and  cannot  be  expressed  by  any  other  word ;  for  it  signifieth,  to 
lib.  5.  cap.  11.      -yyithhold  lands  or  tenements  from  the  right  owner;  in  which  case 
either  the  entry  of  the  right  owner  is  taken  away,  or  the  defor- 
ceor holdeth  it  so  fast,  as  the  right  owner  is  driven  to  his  reall 
prxcipe,  wherein  it  is  said,  undc  A.  eum  injusth  deforceat  or  the 
deforceor  so  disturbeth  the  right  owner,  as  he  cannot  enjoy  his 
r.rnct.  ct  Flet.      owne  ;  and  therefore  it  is  said,  Per  hocautem  quod  dtcitur  in  brevi 
ubi  supra.  uMma^proisentationis  deforceant,  videtur  quibusdam  (piod querens 

inmiatperhoc  quod  deforceans  sit  in  seisiiia,  sicut  in  brevi derecto 
sed  reveranon  est  ita,sed  satis  deforceat  qui  possessorem  utiseisina 
nonpermiserit  omnino  vel  ■mums  commode  impediat prccsentando, 
apjidlando,  impetrando,  secundum  quod  dicitiir  de  disseisitoire, 
satisfacit  disseisinam,  qui  uti  non  jy-rynisit  possessorem  vel  minus 
commode  licet  oinnino  non  expellat.  In  this  case  that  Littleton 
putteth,  the  discontinuee  being  in  by  wrong,  is  no  disseisor,  abator, 
[o]  Mir  cap.  2.  or  intruder,  but  a  deforceor ;  and  hereof  commeth  Deforcement, 
8ect.  25.  and  thus  did  antiquitie  describe  it :  [o]  Deforcement,  come  si  ascun 

(5  Rep.  85.  gjj^g^  ^^  atiter  tenement  tant  come  le  veray  seiynior  est  al  market, 

^^  ^^         OH  ailors,  et  reiorne,  et  ne  poet  aver  entre  eins  est  celuy  deforce  et 
debotue.  And  for  that  at  the  first  the  withholding  was  with  vio- 
lence and  force,  it  was  called  a  deforcement  of  the  lands  or  tene- 
ments 


L.  3.  C.  11.  S.  615-16.  Of  Discontinuance.  [331.  b.  332.  a. 

ments  ;  but  now  it  is  generally  extended  to  all  kinde  of  wrong- 
full  withholding  of  lands  or  tenements  from  the  right  owner. 
There  is  a  writ  called  a  quod  ei  deforccat,  and  lieth  where  tenant 
in  taile,  or  tenant  for  life,  loseth  by  default,  by  the  statute  he  Westm.2.cap.  4. 
shall  have  a  quod  ei  deforceat  against  the  rccoverer,  and  yet  he 
commeth  in  by  course  of  law  (1). 


Sect.  615. 


ALSO^  if  land  hee  let  to  a  man  for  terme  of  his  life,  the  remainder  to 
another  in  taile,  if  he  in  the  remainder  will  grant  his  remainder  to 
another  in  fee  by  his  deed,  and  the  tenaunt  for  life  attorne,  this  is  no 
discontinuance  of  the  remainder*. 


p33.i  jl@-  Sect.  616. 

ALSO,  if  a  man  hath  a  rent  service  or  rent  charge  in  taile,  and  hee 
grant  the  sayd  re7it  to  another  in  fee,  and  the  tenant  attorne,^  this 
is  no  discontinuance,  ^c. 

Sect. 

&c.  added  in  L.  and  M.  and  Roh.         f  &q,.  added  in  L.  and  M.  and  Roh. 


(1)  Sir  William  Blackstoue,  in  his  account  of  a  deforcement,  3  Com.  c.  10. 
observes,  that  it  is  nomcn  general issimum  ;  being  a  much  larger  and  more  com- 
prehensive expression  than  any  of  the  former,  and  signifying  the  holding  of 
any  lauds  or  tenements  to  which  another  person  has  aright;  so  that  it  includes 
as  well  an  abatement,  an  intrusion,  a  disseisin,  or  a  discontinuance,  as  any  other 
species  of  wrong  whatsoever,  whereby  he  that  hath  a  right  to  the  freehold  is 
kept  out  of  possession.  Uut,  as  contradistinguished  from  the  former,  it  is  only 
such  a  detainer  of  the  freehold  from  him  that  hath  the  right  of  property,  but 
never  had  any  possession  under  that  right,  as  falls  within  none  of  those  injuries. 
A  deforcement  may  also  be  grounded  on  the  non-performance  of  a  covenant 
real :  as  if  a  man  seised  of  lands  covenants  to  convey  them  to  another,  and 
neglects  or  refuses  so  to  do,  but  continues  possession  against  him,  this  possession 
beinf  wrongfuU  is  a  deforcement.  Aud  hence,  in  levying  a  fine  of  lands,  the 
person  against  whom  the  fictitious  action  is  brought  upon  a  supposed  breach  of 
covenant,  is  called  a  deforceant.  Mons.  Ilouard,  Anc.  Loix  dcs  Francois,  turn. 
1.  p.  654.  mentions,  thatDu  Cange  refers  to  the  laws  of  Alfred  and  other  kings 
of  England  precedent  to  the  Conquest,  for  an  explanation  of  the  word  Deforce- 
ment; but  that  he  ought  to  have  observed,  that  it  was  not  introduced  into  the 
Latin  translation  of  those  laws  till  after  the  introduction  of  the  Norman  cus- 
toms into  England  ;  that  deforce  is  an  old  French  word,  and  that  fartia  is  taken 
for  force  in  the  28th  formula  of  Marculphus. — [Note  280*.] 


332.  a.]    Of  Discontinuance.    L.  3.  C.  11.  Sect.  617-18. 


Sect.  617. 

A  LSOj  if  a  man  bee  tenaunt  in  taile  of  an  advowson  in  grosse,  or  of 

a  common  in  grosse,  if  he  hy  Ms  deed  will  graunt  the  advowson  or 

common  to  another  in  fee,  this  is  no  discontinuance  ;  for  in  such  cases 

the  grauntees  have  no  estate  hut  for  terme  of  the  life  of  tenant  in  taile 

that  made  the  grant,  ^c. 

Bract.l.2.fo.3.&  T)Y  the  cases  in  these  three  Sections  it  appeareth,  that  if  a  re- 
^'R^i'%  Ysr  maiuder  or  a  rent  service,  or  a  rent  charge,  or  an  advowson, 

Mir.  c.  2.  sec.  17.  Of  a  coinmon,  or  any  other  inheritance  that  lieth  in  grant,  be 

Flet.lib.3.ca.l5.  granted  by  tenant  in  tail,  it  is  no  discontinuance,  as  formerly 

ril'E^S^S  tath  beene  said. 

21  E.  3.  37,  38.         Ij-"]  Note,  here  is  an  advowson  named  by  Littleton,  as  a  thing 

43  E.  3. 1.  b.  that  lieth  in  grant,  and  passeth  not  by  liverie  of  seisin. 

5  H.  7.  37.'    18  II.  8.     16  El.  Dv.  323.  b. 


Sect.  618. 

AND  note,  that  of  such  things  as  passe  hy  way  of  grant,  hy  deed  made 

in  the  countrie,  f  and  tvithout  livery,  there  such  grant  maketh  no 

discontinuance,  as  in  the  cases  aforesayd,  %  and  in  other  like  cases,  Sj-c. 

II  And  alheit  such  things  hee  graunted  in  fee,  by  fine  levied  in  the  king's 

court,  ^'C.  yet  this  maketh  not  a  discontinuance,  ^c. 


EERE  is  the  generall  reason  yeelded  of  the  precedent  cases 
and  the  like  ;  for  that  it  is  a  maxime  in  law,  that  a  grant  [^7] 
Discont  3  ^^  ^'^'^^  ^^  ^^^^  things  as  doe  lie  in  grant,  and  not  in  liverie  of 

33  Ass.  8.*  seisin,   do  worke  no   discontinuance  (1).     But   the    particular 

4H.7. 17.  reason  is,  for  that  of  such   things  the  grant  of  tenant  in  taile 

15  H  7'  19'  worketh  no  wrong,  either  to  the  issue  in  taile,  or  to  him  in  re- 

21  U.  6.  52,  53.    version  or  remainder  ;  for  nothing  doth  passe  but  onely  during 
5  E.  4.  3.  the  life  of  the  tenant  in  taile,  which  is  lawfull,  and  every  discon- 

^l  S"  t'^'  tinuance  worketh  a  wrong,  as  hath  beene  said. 

22  R.  2  Discon.  °' 

66.         38  H.  8.  Discon.  35.        Brooke.         19  E.  3.  Bre.  468.         PI.  Com.  435. 
18  Ass.  p.  2, 

If 

■f  and  without  livery,  there — &c.  %  and  in — or,  L.  and  M.  and  Roh. 

where,  L.  and  M.  and  Roh.  ||  And  not  in  L.  and  M.  or  Roh. 


(1)  VIII.  That  nothing  which  lies  in  grant  can  he  said  to  he  discontinued. — 
The  term  discontinuance  is  used  to  distinguish  those  cases  where  the  party, 
whose  freehold  is  ousted,  can  restore  it  by  action  only,  from  those  in  which 
he  may  restore  it  by  entry.  Now,  things  which  lie  in  grant  cannot  either  be 
divested  or  restored  by  entry.  The  owner,  therefore,  of  any  thing  which  lies 
in  grant,  has  in  no  stage,  and  under  no  circumstances,  any  other  remedy  but 

by 


L.  3.  C.  11.  Sect.  618.     Of  Discontinuance.      [332.  b. 

339. "j       [q"]  B@°"  If  tenant  in  taile  of  a  rent  service,  &c.  or  of  [q]  33  E.  3. 
b.    J   a  reversion,  or  remainder  in  taile,  kc  grant  the  same  ?''"V?*^f '  *^' 
in  fee  vrith  warrantie,  and  leaveth  assets  in  fee  simple,  og  Ass.  8. 
and  dieth,  this  is  neither  barre  nor  discontinuance  to  the  issue  in  4  11.  7. 17. 
taile ;  but  he  may  distraine  for  the  rent  or  service,  or  enter  into  (3  Rep.  84,85. 
the  land  after  the  decease  of  tenant  for  life.     But  if  the  issue  ^  ^'^P-  -"^^  ""■> 
bringeth  aformedon  in  the  descender,  and  admit  himsolfe  out  of 
possession,  then  he  shall  be  barred  by  the  warrantie  and  assets. 

[r]  Tenant  in  taile  of  a  rent  disseiseth  the  tenant  of  the  land,  [,.]  3  ^  7  j2. 
and  makelh  a  feoffment  in  fee  with  warrantie  and  dieth,  this  is  (Mo.  6:n.) 
no  discontinuance  of  the  rent,  but  the  issue  may  distreyne  for  ^i^i^^y^^hr. 
the  same;  and  albeit  the  warrantie  extend  to  the  rent,  yet  by  6:',2.    Sir  E<lw. 
the  rule  of  Litfhton  it  lieth  not  in  discontinuance :  and  where  Seymour'.-;  case, 
the  thing  doth  lie  in  liverie,  as  lands  and  tenements,  yet  if  to  lOH-ap-Sa-) 
the  conveyance  of  the  freeiiold  or  inheritance  no  liverie  of  seisin 
is  requisite,  it  worketh  no  discontinuance,     [s]  As  if  a  tenant  in 
taile  exchange  lands,  &c.  or  if  the  king  being  tenant  in  taile,  [»]  38  H.  8. 
grant  by  his  letters  patents  the  lands  in  fee,  there  is  no  discon-  p|''conI!'^233!^* 
tinnance  wrought.  Li.  1.  f.  20. 

Alton  Wood's 

"  By  fine."     Of  a  thing  that  lieth  in  grant,  though  it  be  c^^^^-  ^^^  ^. 
granted  by  fine,  yet  it  wurketh  no  discontinuance;  and  this  is  48  e!  3.  23. 
regularly  true.  (2  Sid.  6j.) 

[<]  If  tenant  in  tailo  make  a  lease  for  yeares  of  lands,  and  after  [<]  15  E.  4. 
levie'a  fine,  this  is  a  discontinuance  ;  for  a  fine  is  a  feoffment  of  g  jj^gg"""^'"  ^^' 
record,  and  the  freehold  passeth.     Bat  if  tenant  in  taile  raaketh  ^j  riep.'re." 
a  lease  for  his  own  life,  and  after  levie  a  fine,  this  is  no  discon-  1  Roll.  Rop. 
tiuuanee,  because  the  reversion  expectant  upon  a  state  of  free-  l^**-    ^  ^'*i-  ^3.) 
hold  which  lieth  onely  in  grant  passeth  thereby  (1). 

Sect. 


by  action  ;  consequently  the  distinction  in  question  can  never  be  applicable  to 
him.  It  is  true,  that  the  books  often  mention  both  disseisins  and  discontinu- 
ances of  incorporeal  hereditaments ;  but  these  disseisins  and  discontinuances 
are  ouly  at  the  election  of  the  party,  for  the  purpose  of  availing  himself  of  the 
remedy  by  action. — Some  observations  on  disseisins  of  this  description  are  in- 
serted in  note,  page  330.  b. — [Note  287.] 

(1)  It  is  frequently  said  in  our  law-books,  that  a  fine  has  no  operation  upon 
any  estate  or  interest,  which  is  not  previously  divested  or  turned  to  a  rigiit  j 
but  this  expression,  considered  strictly,  is  inaccurate.  By  turning  to  a  right, 
it  is  generally  meant,  that  the  person  whose  possession  is  usurped,  cannot 
reiitore  it  by  entry,  and  can  only  recover  it  by  action.  See  note  1,  ant.  239.  a. 
But  in  the  present  case,  the  expression,  turned  to  a  right,  must  be  understood 
in  a  more  general  sense.  The  import  of  it  is,  that  the  parties  to  the  fine,  or 
some  of  them,  have  in  them  at  the  time  of  their  levying  the  fine,  or  acquire  by 
it,  a  possession,  adverse  to,  and  inconsistent  with,  the  estate  or  right  intended 
to  be  barred  ;  the  real  owner,  therefore,  at  the  time  of  levying  the  fine,  or  by  its 
operation,  is  disseised  of  his  possession,  but  the  right  still  remains  in  him.  In 
this  general  sense,  his  possession  may  be  said  to  be  turned  to  a  right ;  but  this 
right  may  be  such  as  enables  him  to  restore  his  possession  by  mere  entry, 
without  his  resorting  to  an  action.  See  2  Atk.  631.  In  another  sense  it  is 
inaccurate,  as  it  seems  to  imply,  that  the  turning  to  a  right  is  produced  by  the 
operation  of  the  fine ;  but,  generally  speaking,  this  is  not  the  case.  Every 
disseisin,  intrusion,  or  abatement,  turns  the  estate  to  a  right,  in  the  sense  ia 
which  that  expression  is  explained  before.  If  the  disseisor,  intruder,  or  abater, 
afterwards  levies  a  fine,  it   operates  by  the  statute,  after  a  non-claim  of  five 

years. 


332.  b.  333.  a.]  Of  Discontinuance.  L.  3.  C.  11.  S.  619-20. 


Sect.  619. 

[f  \rOTU,  if  I  give  land  to  another  in  taile,  and  Jiee  lettetli  the  same 
land  to  another  for  terme  of  year  es,  and  after  the  lessor  graunteth 
the  reversion  to  another  in  fee,  and  the  tenant  for  yeares  attorne  to 
the  grantee,  and  the  term  expireth  during  the  life  of  the  tenant  in  tayle, 
by  which  the  grauntee  enter,  and  after  the  tenant  in  taile  hath  issue  and 
die;  in  this  case  this  is  no  discontinuance,  notwithstanding  the  gratit 
be  executed  in  the  life  of  the  tenant  in  taile,  for  that  at  the  time  of  the 
lease  made  for  yeares,  no  new  fee  simple  was  reserved  in  the  lessor,  but 
the  reversion  remained  to  him  in  taile,  as  it  was  before  the  lease  made.  *J 

^I^HIS    is   added  to  Littleton,  and  not  in   the    originall,  and 
i    therefore  I  purposely  omit  it :  yet  is  the  case  good  in  law, 
because  neither  the  lease  for  yeares,  nor  the  grant  of  the  rever- 
sion, divesteth  any  estate. 


e^-Sect.  620.  fssa. 


["f"] 


\.  T)UT  if  the  tenant  in  taile  make  a  lease  for  terme  of  the  life  of  the 
lessee,  ^^c.  in  this  case  the  tenant  in  tayle  hath  made  a  new  reversion 
of  the  fee  simple  in  him  (en  cest  case  le  tenant  en  le  tayle  ad  |  fait  un 
novel  reversion  de  ||  fee  simple  en  luy  ;)  because  tvhen  hemade  the  lease 
for  life,  ^c.  he  discontinued  §  the  tayle,  ^c.  by  force  of  the  same  lease,  and 
also  hee  discontinued  my  reversion,  cj'c.  And  it  behoveth  that  the  reversion 
of  the  fee  simple  be  in  some  person  in  such  case :  and  it  cannot  be  in  me 
which  am  the  donor,  inasmuch  as  my  reversion  is  discontinued ;  ergo,  the 
reversion  of  the  fee  ought  to  be  in  the  tenant  in  tayle,  who  discontinued 
my  reversion  by  lease,  ^c.  And  if  in  this  case  the  tenant  in  tayle  grant  by 

his 

f  Mote, — aho,  L.  and  M.  and  Eoh.  land  to  another  for  term  of  life,  &c. 
— No  part    of   this    Section   within  |  en  added  in  L.  and  M. 

crotchets  is  in  L.  and  M.  or  Roh.  ||  de — en,  L.  and  M. 

1  In  L.  and  M.  and  MSS.    this  Sec-  §  the.  tayle,  &c.  by  force  of  the  same 

tion  begins    thus:    //'  1  give  land  to  lease,  and  also  hee  discontinued,  uoi'va. 

another  in  taile  and  he  letteth  the  same  L.  and  M.  or  Roh. 


years,  as  a  bar  to  the  right  of  the  person  whose  estate  is  disseised,  intruded 
upon,  or  abated.  But  its  operation  in  these  cases  is  merely  as  a  bar,  the 
ouster  of  the  possession  or  divesting  of  the  right  being  previously  effected  by 
the  disseisin,  intrusion,  or  abatement.  In  some  cases,  however,  it  does  not 
operate  only  as  a  bar.  As  if  tenant  for  life  levies  a  fine,  it  is  a  forfeiture  of 
his  estate;  and  if  the  reversioner  does  not  euter  within  five  years  after  the  for- 
feiture, or  at  the  farthest  within  five  years  after  the  death  of  the  tenant  for  life, 
b'^  is  barred  of  his  remedy  to  recover.  Whaley  and  Tancred,  1  Ventris;  241. — 
[Note  288.] 


L.  3.  C.  11.  S.  620.    Of  Discontinuance.    [333.  a.  333.  b. 

Ids  deed  this  reversion  in  fee  to  another,  and  the  tenant  for  life  attorne, 
^c.  and  after  the  tenant  for  life  dieth,  living  the  tenant  in  taile,  and  the 
grantee  of  the  reversion  enter,  ^e.  in  the  life  of  the  tenant  in  taile,  then 
this  is  a  discontinuance  in  fee;  and  if  after  the  tenant  in  tayle  dieth,  his 
issue  may  not  enter,  hut  is  put  to  his  ivrit  of  formedon.  And  the  cause 
is,  for  that  he  which  hath  the  grant  of  such  reversion  in  fee  simple,  hath 
the  seisiii  and  execution  of  the  same  lands  or  tenements,  to  have  to  him, 
and  to  his  heires  in  his  demesne  as  of  fee,  in  the  life  of  the  tenant  in  tayle. 
*  \^And  this  is  hy  force  of  the  grant  of  the  said  tenant  in  tayle. 

"  jp  OR  terme  of  the  life  of  the  lessee,  &c."     Here  is  implied, 

or  for  terme  of  another  man's  life  (1).  (1  Roll.  633.) 

"J.  new  reversion  of  the  fee  simple.     Which  must  be  under-  15  E.  4  tit. 
stood  of  a  fee  simple  detenninable  upon  the  life  of  the  lessee,  Discont.  30. 
which  our  author  here  calleth   a  fee  simple;  for  if  the  lessee 
dieth  the  donee  is  tenant  in  taile  againe,  as  hee  was  before  ;  and 
that  is  the  reason  that  if  in  that  case  hee  granteth  over  the  re- 
version and  dieth ;  and   after  the  death  of  tenant  in  taile  the  (Cro.  Car.  156.) 
lessee  dieth;  the  entry  of  the  issue  is  lawfull,  because  by  the 
death  of  the  lessee  the  discontinuance  is  determined;  and  con- 
sequently the  grant  made  of  the  reversion  gained  upon  that  dis- 
continuance is  void  also. 

If  tenant  in  taile  maketh  a  lease  for  three  lives  according  to 
the  statute  of  32  H.  8,  that  is  no  discontinuance  of  the  estate  32  H.  S.  cap.  28. 
taile  or  of  the  reversion,  because  it  is  authorised  by  act  of  par- 
liament, whereunto  every  man  in  judgement  of  law  is  partie. 

And  yet  in  some  cases  the  freehold  may  be  discontinued  and 
not  the  reversion.    [?<]  As  if  the  husband  and  wife  make  a  lease  [«]  38  E.  3.  32. 
for  life  by  deed  (2)  of  the  wife's  land,  reserving  a  rent,  the  bus-  1^  ^^^'^•^^ 
band  dieth ;  this  was  a  discontinuance  at  the   common  law  for  22  h.  6.  24. 

life ;  and  yet  the  reversion  was  not  discontinued,  but 
r333.1    remained  in  the  wife.  Otherwise  it  is  B®"-  if  the  bus-  (§  ^^^P-  ^1-) 


[^f-] 


band  had  made  the  lease  alone. 


''And  after  the  tenant  for  life  dieth,  (fee."  The  like  law  it  is  21  H.  6.  52. 
if  the  tenant  for  life  surrender  to  the  grantee,  or  if  the  grantee  p.^-^^^^  ^I; 
recover  in  an  action  of  waste,  or  enter  for  the  forfeiture. 


'Hath 


*  No  part  of  this  or  of  the  following  Section  within  crotchets  is  in  L.  and 
M.  or  lloh. 


(1)  IX.  It  has  been  observed  before,  that  no  conveyance  by  tenant  in  tail 
can  operate  as  a  discontinuance,  unless  it  is  created  by  livery,  or  by  that 
which,  in  the  eye  of  the  law,  is  tantamount  to  it. — Littleton  now  proceeds  to 
lay  down,  that  to  make  a  discontinuance,  the  conveyance  must  be  of  such  an 
estate  as  in  its  original  creation  may,  hy  possihility,  endure  beyond  the  life  of 
the  tenant  in  tail.  When  the  estate  so  created  is  at  an  end,  the  discontinuance 
also  is  at  an  end. — [Note  289.] 

(2)  Nota,  a  proviso  on  32  Hen.  VIIL  that  the  lease  shall  be  made  in  both 
their  names,  where  the  inheritance  is  in  the  woman.  And  see  Cro.  Car.  22. 
Smith  V.  Trender,  ichere  there  is  a  qua're,  whether  it  ought  to  be  so  where  the 
inheritance  is  in  both. — Lord  Nott.  MSS. — [Note  290. 


333.  b.J         Of  Discontinuance.    L.  3.  C  11.  Sect.  620. 

32  E.  3.  '^Hath  the  seisin  and  execufion."     And  here  it  is  to  be  ob- 

Discont.  2.  served,  that  when  the  reversion  in  this  case  is  executed  in  the 

*3  E-  •'•  life  of  tenant  in  taile,  it  is  equivalent  in  judgement  of  law  to  a 

3  u\  9°^  feoffment  in  fee,  for  the  state  for  life  passeth  by  liverie. 

22  R.  2.  Discont.  50.     34  Ass.  6.  PI.  4.     38  Ass.  6.  p.  6.     43  Ass.  6.  48.     18  E.  3.  43. 
21  H.  6.  52.       15  E.  4.  tit.  Discontinuance,   30.       Brooke,  tit.  Discont.  3,  and  14. 

4  H.  7.  17.    21  H.  7.  11. 

[ib]  21  H.  6.  [iv]  If  tenant  in  taile  make  a  lease  for  life,  the  remainder  in 

^2,  53.  fee,  this  is  an  absolute  discontinuance,  albeit  the  remainder  be 

not  executed  in  the  life   of  tenant  in  taile,  because  all  is  one 

estate,  and  passeth  by  one  livery.     And  so  note  a  diversitie  be- 

tweene  a  grant  of  a  reversion,  and  a  limitation  of  a  remainder. 

B.  tenant  in  taile  maketh  a  gift  in  taile  to  A.  and  after  B.  re- 

leaseth  to  A.  and  his  heires,  and  after  A.  dieth  without  issue; 

the  issue  of  the    first  donee  may  enter  upon  the  collateral  heire, 

because  A.  had  not  seisin  and  execution  of  the  reversion  of  the 

land  in  his  demesne  as  of  fee,  as  Littleton  here  speaketh.     But 

if  tenant  in  taile  make  a  lease  for  the  life  of  the  lessee,  and  after 

releaseth  to  him  and  his  heires,  this  is  an  absolute  discontinuance  ; 

because  the  fee  simple  is  executed  in  the  life  of  tenant  in  taile. 

[i/]  If  tenant  in  taile  of  a  manner  whereunto  an  advowson  is 

[jf]  34  E.  1.  appendant,  maketh  a  feoffment  in  fee  by  deed  (as  it  ought  to  be) 

Quajre  iinpedit.       '^  •  i       i  i  i   ,i         i.         i    u  *!        ^:J 

179.  22  E.  3.  6.  ot   one  acre  with  the  advowson,  and  the  church  becometh  void, 

17  E.  3.  3.'    '   '  and  the  feoffee  present,  tenant  in  taile  dieth,  the  church  becom- 

^■^  ^- ^- Q"are  methvoid;  the  issue  shall  not  present  untill  he  hath  re-con- 

23  Ass.  8.  tinned  the  acre.  But  if  the  feoffee  had  not  executed  the  same 
50  E.  3. 26.  by  presentment,  then  the  issue  in  taile  should  have  presented. 
(Ant.  298.  j^^^  gQ  ^ag  it  at  the  common  law,  of  the  husband  seised  in  the 
F.  V.  B.32."  right  of  his  wife,  mutatis  mutandis. 

(1  Koll.  Abr.  632.     1  Rep.  76.) 

If  a  fine  be  levied  to  a  tenant  in  taile,  and  he  granteth  and 
„^  .  rendreth  the  land  to  him  and  his   heires,  and  die  before  execu- 

42  E^3.  20.  tion,  this  is  no  discontinuance.     Otherwise  it  is,  if  it  had  beene 

22  R.  2.  executed  in  the  life  of  tenant  in  taile. 

Discont.  50.  [f  tenant  in  taile  make  a  lease  for  life  of  the  lessee,  and  after 

2Th.'  r52,'^53."^  gi'^^t  t^6  reversion  with  warrantie,  and  dieth  before  execution, 
Brooke," tit.'  *  this  is  no  discontinuance;  because  the  discontinuance  was  (as 
Discont.  3.  iiath  beene  said)  but  for  life,  and  the  warrantie  cannot  enlarge 

21  H.  7.  11.  X.  /IN       '^ 

Lib.  ifol.  85.      the  same  (1). 
Lib.  10.  fol.  96,  97.     (W.Jones,  210.     Cro.  Car.  156.) 

''And  this  is  hi/ force  of  the  gra7it  of  the  said  tenant  in  tayle." 

[»]  15  E.  4.         Hereupon  Litdeton  himselfe  is  of  the  same  opinion,  [*]  as  it  ap- 

Discont.  30.         peareth  he  was  in  our  bookes  ;  that  if  tenant  in  taile  make  a  lease 

Vide  Sect.  642.    ^^^,  jj^^^^  ^^^  ^^,^^^  ^j^^  reversion  in  fee,  and  the  lessee  attorue,  and 

that  grantee  granteth  it  over,  and  the  lessee  attorne,  and  then 

the  lessee  for  life  dieth,  so  as  the  reversion  is  executed  in  the  life 

of 


(1)  All  this  is  a  consequence  of  the  doctrine  laid  down  in  the  last  page. 
If  the  remainder  or  reversion  is  created  at  the  same  time  as  the  particular 
estate,  it  necessarily  must  be  created  by  the  same  livery.  If  it  is  created  at  a 
subsequent  time,  then  to  continue  the  discontinuance  after  the  determination 
of  the  particular  estate,  the  reversion  or  remainder  must  be  executed  in  posses- 
sion during  the  life  of  the  tenant  in  tail.  The  entry  of  the  reversioner  or 
remainder-man  in  this  case  is  tantamount  to  a  second  livery. — [Note  291.] 


L.  3.  C.  11.  S.  621-2.  Of  Discoritinuance.  [333.  b.  334.  a. 

of  tenant  in  taile,  yet  this  is  no  discontinuance,  but  that  after 
the  death  of  tenant  in  taile  the  issue  may  enter;  because  (as 
Littleton  here  saith)  he  is  not  in  of  the  grant  of  the  tenant  in 
taile,  but  of  his  grantee. 

If  at  this  day  tenant  in  taile  make  a  lease  for  life,  and  aft^rby 
deed  indented  and  inrolled  according  to  the  statute  he  bargaineth 
and  selleth  the  reversion  to  another  in  fee,  and  the  lessee  dicth, 
so  as  the  reversion  is  executed  in  the  life  of  tenant  in  taile; 
albeit  the  bargainee  is  not  in  the  per  by  the  tenant  in  taile,  yet 
inasmuch  as  he  claimeth  the  reversion  immediately  from  him, 
which  is  executed  in  his  lifetime,  this  is  a  discontinuance.  And 
so  it  is,  and  for  the  same  cause,  if  tenant  in  taile  had  granted  the 
reversion  to  the  use  of  another  and  his  heires.  If  tenant  in  taile 
maketh  a  lease  for  life,  and  after  disseiseth  the  lessee  for  life,  and 
maketh  a  feoffment  in  fee,  the  lessee  dieth,  and  then  tenant  in 
taile  dieth ;  albeit  the  fee  be  executed,  yet  for  that  the  fee  was 
not  executed  by  lawfuU  meanes,  (as  in  all  the  cases  of  Littletmi 
it  appeareth  it  ought  to  be)  it  is  no  discontinuance. 


P^] 


JB®"  oCCt.    b-^1.  mesme  ie  case.) 


7iV  the  same  manner  shall  it  he,  if  in  the  case  aforesaid  the  tenant  for 
terme  of  life  after  the  attornement  to  the  grantee  had  aliened  in  fee, 
and  the  grantee  had  entred  by  forfeiture  of  his  estate,  and  after  the  ten- 
ant in  tayle  had  died,  this  is  a  discontinuance,  causa  qua  supra.] 


1 


HIS  is  added  in  this  place,  but  in  the  originall  it  commeth  21  H.  6.  52,  53. 

15  E.  4. 

Discount.  30. 


in  after  in  this  chapter*  ^^  ^-  *• 


Sect.  622.  S""'"""- 

Cro.  Car.  156.) 


J?  UT  in  this  case,  if  tenant  in  taile  that  grants  the  reversion,  (j-c.  dieth, 
living  the  tenant  for  life,  and  after  the  tenant  for  life  dieth,  and  after 
hee  to  iv'hom  the  reversion  was  granted  enter,  c^c.  then  this  is  no  discon- 
tinuance, but  that  the  issue  of  the  tenant  in  tayle  may  well  enter  upon 
the  grantee  of  the  reversion  ;  because  the  reversion  which  the  grantee  had, 
^c.  was  not  executed,  i^c.  in  the  life  of  the  tenant  in  taile,  <f(?.  And 
so  there  is  a  great  diversitie  when  tenant  in  tayle  maketh  a  lease  for 
yeares,  and  where  he  maketh  a  lease  for  life;  for  in  the  one  case  hee  hath 
a  reversion   in  tayle,  and  in  the  other  case  hee  hath  a  reversion  in 

XI). 

OF 


*  Rut  it  does  not  appear  in  this  Chapter  in  L.  and  M.  or  Rob.  nor  in  MSS. 
(1)  See  the  note  on  the  following  Section. 


334.  a.  334.  b.]  Of  Discontinuance.  L.  3.  C.  11.  S.  623-4-5. 


0' 


tF  this  sufficient  hath  beene  said  before,  and  is  of  itselfe  mani- 
fest and  needeth  no  explication. 
18  Ass.  6.  Like  law  was  at  the  common  law  of  a  husband  seised  of  land 

21  H.  6.  53.         Jq  right  of  his  wife,  mutatis  mutandis. 

m^  Sect.  623.  [^b.^*] 

TpOR  if  land  bee  given  to  a  man  and  to  his  Jieires  males  of  his  body 
engendred,  loho  hath  issue  two  sonnes,  and  the  eldest  sonne  hath  issue 
a  daughter  and  dieth,*'  and  the  tenant  intayle  maheth  a  lease  for  yeares 
and  die,  notv  the  reversion  descendeth  to  the  younger  sonyie,  for  that  the 
reversion  was  but  in  the  taile,  and  the  youngest  sonne  is  heiremale,  ^c. 
But  if  the  tenant  had  made  a  lease  for  life,  ^c.  and  after  died,  now  the 
reversion  descendeth  to  the  daughter  of  the  elder  brother,  for  that  the 
reversion  is  in  the  fee  simple,  and  the  daughter  is  heire  generall,  ^c.  (1) 

This  is  evident  also  and  needeth  no  explanation. 


Sect.  624. 


J  LSO,  if  a  man  be  seised  in  taile  of  lands  devisable  by  testament,  ^c. 
and  hee  deviseth  this  to  another  in  fee,  and  dieth,  and  the  other 
enter,  ^c.  this  is  no  discontinuance,  for  that  no  discontinuance  was  made 
in  the  life  of  the  tenant  in  taile,  ^c. 

9E. 4. 22.  '"PHIS  is  manifest,  and  needeth  no  explanation:  only  this  is 

v^'  1^18  F*^  8  -*-  to  be  observed,  that  no  discontinuance  can  be  made  by  ten- 
tCro.  Car.  405."  ant  in  taile,  but  such  as  is  made  and  taketh  effect  in  his  lifetime, 
1  Roll.  Abr.  633.)  which  is  here  implied  in  the  (t&c.) 

/ 

Sect.  625. 

A  LSO,  if  land  be  given  in  taile,  saving  the  reversion  to  the  donor, 

and  after  the  tenant  in  taile  by  his  deed  enfeoffe  the  donor,  to  have 

and  to  hold  to  him  and  to  his  heiresfor  ever,  and  deliver  to  him  seisin 

accordingly, 

*and  the  tenant  in  tayle  maketh  a  lease  for  yeares  and  die,  not  in  L.  and  M. 
or  Roh. 


(1)  The  estate  of  the  lessee  for  years  not  being  created  by  livery,  does  not  dis- 
place the  possession,  and  consequently  does  not  disturb  the  descent  of  the  in- 
heritance upon  the  issues  inheritable  to  the  estate.  It  is  otherwise  where  the 
lease  is  for  life.  That  is  created  by  livery,  and  therefore  displaces^  the  posses- 
sion, and  gives  the  tenant  in  tail  a  tortious  estate  in  fee  simple,  in  reversion 
immediately  expectant  upon  the  life  estate  of  his  donee ; — that  reversion  must 
therefore  descend  on  the  daughter  as  heir  general. — [Note  292.] 


L.  3.  C.ll.  S.  625.    Of  Discontinuance.    [334.  b.  335.  a 

accordingly,  ^c.  this  is  no  discontinuance,  because  none  can  discontinue 
the  estate  taile,  unlesse  he  discontinueth  the  reversion  of  him  who  hath 
the  reversion,  ^c.  or  remainder,  if  any  hath  the  remainder,  ^c.  And 
inasmuch  as  by  such  feoffment  made  to  the  donor  {the  reversion  then 
being  in  him)  his  reversion  was  not  discontinued  nor  altred,  l^c.  this 
feoffment  is  no  discontinuance,  ^c. 

AND  of  this  opinion  is  L!tthto7i  [a]  in  our  bookes,  and  saith   [«]  9  E.  4.24.  b. 
that  so  it  was  adjudged. 

^'' Enfeoff e  iJie  donor,  &cy     This  must  be  under-   Lib.  l.  fol.  140. 

t335.~|  stood  where  the  reversion  of  the  donor  is  immediately  in  Clmdlyo's 
a.     J  B®""  expectant  upon  the  estate  of  the  donee;   [i]  for   (i'roh.  Abr. 
if  a  man  make  a  gift  in  taile  the  remainder  in  taile,   634.) 
reserving  the  reversion  to  himselfe :  in  this  case  if  the  donee   [^1  ^  ^^^-  2- 
enfeoffe  the  donor,  this  is  a  discontinuance,  because  there  is  a   ^  Rep.  146.  b  ) 
meane  estate  ;  and  so  doth  Littleton  here  put  his  case  of  a  rever-   (Ant.  42.  a.) 
sion  immediately  expectant  upon  the  gift  in  taile.     Also  it  is  to  28II.  8.  Dier,  12. 
be  intended  of  a  feoffment  made  to  the  donor  solely  or  only;  for 
if  the  donee  enfeoffe  the  donor  and  a  stranger,  this  is  a  discon- 
tinuance of  the  whole  land. 

But  if  tenant  for  life  make  a  lease  for  his  owne  life  to  the   (1  Rep.  76.  b. 
lessor,  the  remainder  to  the  lessor  and  an  estranger  in  fee:  in   Sul. 361.) 
tliis'case,  forasmuch  as  the  limitation  of  the  fee  should  worke 
the  wrong,  it  cnureth  to  the  lessor  as  a  surrender  for  the  one 
moytie,  and  a  forfeiture  as  to  the  remainder  of  the  stranger;  for   (Dyer,  12.  b.) 
he  cannot  give  to  the  lessor  that  which  he  had  before,  as  our 
author  here  saith;  and  as  to  the  remainder  to  the  stranger,  it  is 
a  forfeiture  for  his  moytie,  and  when  the  lessor  entreth,  he  shall 
take  the  benefit  of  it.     But  if  two  joyntenants  be,  and  one  of  (Ant.  169.  a. 
them  enfeoffe  his  companion  and  a  stranger,  and  make  livery  to   1S6.  a.  193.  b. 
the  stranger;  this  shall  vest  only  in  the  stranger,  because  the   Abr.  86.  403. ' 
livery  cannot  enure  to  his  companion.  1  Rep.  lOO.  b. 

4  Leo.  23.) 

^^ None  can  discontimie  the  estate  taile,  unlesse  he  discontinueth  40  Ass.  36. 

the  reversion,  kc.  or  remainder,  &c."     And  therefore  for  this  ^ip^^o^fl 

cause,  if  the  reversion  or  remainder  be  in  the  king,  the  tenant  j-_n_'b',  142.  a. 

in  taile  cannot  discontinue  the  estate  taile.     [f]  But  tenant  in  pi.  Com.  555. 

taile,  the  reversion  in  the  king,  might  have  barred  the  estate  W'l,^.^^-^-    ,, 

X    -1    V  ^'11  ii        I   i    *       f  "1    7A  C      „    on      tit.  Taile,  Br.  41. 

taile  by  a  common  recovery,  until!  the  statute  ot  o-i  It.  o.  ca.  J.O.  pj  q^^^  ^y^-^ 

which  rcstraineth  such  a  tenant  in  taile;  but  that  common  reco-  supra, 
very  neither  barred  nor  discontinued  the  king's  reversion  (1). 

Note,  the  reversion  may  be  revested,  and  yet  the  discontinu- 
ance reraaine.     [r/]  As  if  a  feme  covert  be  tenant  for  life,  and  [d]  27  Ass.  p.  60. 
the  husband  make  a  feoffment  in   fee,  and  the  lessor  enter  for  ^^  ^'^^-  ^^^ 
the  forfeiture;  here  is  the  reversion  revested,  and  yet  the  dis-  ir  a.^s.  11. 

continuance  rjiuained  at  the  common  law.  I'^l''-  •5-  45 

(Ant.  333.  b. 


Post.  336.) 


Sect. 


(1)  See  Stone  v.  Newman,  3  Cro.  427. 


335.  a.]        Of  Discontinuance.      L.  3.  C.  11.  Sect.  626. 


glf  ■'''''■  Sect.  626. 

TN  the  same  manner  is  it,  where  lands  are  given  to  a  man  in  taile,  the 
remainder  to  another  in  fee,  and  the  tenant  in  taile  enfeoff e  him  that 
is  in  the  remainder,  to  have  and  to  hold  to  him  and  to  his  heires  ;  this  is 
no  discontiyiuance,  causa  qua  supra  (2). 

"  l^HE  remainder  to  another.''^     Here  it  appeareth  that  (as 
hath  beene  said  in  case  of  a  reversion)  the  remainder  must 
be  immediately  expectant  upon  the  estate  taile. 

Sect. 


(2)  X.  A:^  to  discontinuances  made  to,  or  vjith  the  concurrence  of,  the  remain- 
der-man or  reversioner: — The  feoifment  of  tenant  in  tail  to  the  immediate  re- 
mainder-man or  reversioner  in  fee,  has  the  operation  of  a  surrender.  In  this 
light  it  cannot  be  considered  to  pass  a  greater  estate  than  the  grantor  may  law- 
fully convey:  it  does  not,  therefore,  work  a  discontinuance.  But  if  it  is  made 
to  a  stranger,  the  mere  concurrence  of  the  remainder-man  or  reversioner  does 
not  prevent  the  discontinuance,  either  with  respect  to  the  issues  in  taile,  or  his 
own  remainder  or  reversion,  even  though  the  tenant  in  tail  die  without  having 
issue.  Thus,  in  Baker  v.  Hacking,  8  Cro.  3S7.  405.  J.  C.  being  tenant  in 
tail,  with  the  immediate  reversion  in  fee  to  R.  C.  both  of  them  joined  in  a 
feoffment  to  A.  for  life.  R.  C.  made  his  will  and  died;  and  then  J.  C.  died 
without  issue.  It  was  admitted,  that  if  it  were  a  discontinuance  of  the  rever- 
sion, the  devisor,  not  being  seised,  had  no  power  to  devise.  Sir  Geo.  Croke 
was  of  opinion,  that  as  there  was  no  issue  of  the  tenant  in  tail,  his  feoffment 
was  no  discontinuance  of  the  reversion :  he  considered  it  as  the  lease  of  the 
tenant  in  taile  during  his  life,  and  afterwards,  the  lease  of  the  reversioner;  and 
that  the  reversioner's  joining  showed  it  was  not  the  intention  of  the  parties  to 
displace  his  estate.  But  the  three  other  judges  held  it  to  be  a  discontinuance, 
on  the  ground  that  the  effect  of  a  discontinuance  is  immediate,  and  does  not 
depend  on  the  tenant  in  tail  having  or  not  having  issue. — They  were  also  of 
opinion,  that  if  the  reversion  in  fee,  instead  of  being  in  a  stranger,  had  been 
in  the  tenant  in  tail  himself,  the  feoffment  would  have  been  a  discontinuance, 
as  well  of  his  own  reversion  as  of  the  estate  of  the  issue  in  tail. — But  where 
the  tenant  for  life  and  reversioner  join  in  the  conveyance,  each  of  them  is  con- 
sidered to  pass  his  own  estate  :  the  tenant  for  life,  the  freehold;  the  reversioner, 
the  inheritance.  Hence  if  tenant  for  life,  remainder  in  tail,  remainder  in  fee, 
join  in  a  fine,  it  is  no  discontinuance  to  the  remainder-man  in  fee.  This  was 
resolved  in  Peck  v.  Channell,  1  Cro.  827,  828.  on  the  ground,  that  none  shall 
make  a  discontinuance  but  he  who  is  seised  of  an  estate  tail  in  possession. — 
[Note  293.] 


L.3.C.11.S.627-8-9-30.  Of  Discontinuance.  [335.k336.a. 


r335.-j  B^  Sect.  627. 

A  LSO,  if  an  abbot  hath  a  reversion  or  a  rent  service,  or  a  rent 
charge,  and  he  will  grant  *  tliis  reversion,  or  retit  service,  or  rent 
charge,  to  another  in  fee,  and  the  tenant  attorne,  ^c.  this  is  no  dis- 
continuance. 

Of  inheritances  that  lie  in  grant;  suflBcient  hath  been  said 

before. 


Sect.  628. 

TNthe  same  manner  where  an  abbot  is  seised  of  anadvowson,  or  of  such 
things  which  passe  by  way  of  grant  without  liver ie  of  seisin,  cj-c. 

HERE  it  appeareth  (as  hath  beene  said)  that  an  advowson 
doth  not  lie  in  liVerie,  but  in  grant. 


Sect.    629.  (Ant.  234.  a.) 

ALSO,  if  tenant  in  tayle  letteth  his  land  to  another  for  life,  and  after 
he  granteth  in  fee  the  reversion  to  another,  and  the  tenant  attorne, 
and  after  the  tenant  for  life  alien  in  fee,  and  the  grantee  of  the  reversion 
enter,  ^-c.  in  the  life  of  the  tenant  in  taile,  and  after  the  tenant  in  taile 
dieth,  his  issue  shall  not  enter,  but  is  put  to  his  writ  of  formedoni,  be- 
cause the  reversion  in  fee  simple  which  the  grantor  (A)  had  by  the  graunt 
of  the  tenant  in  tayle,  was  executed  in  the  life  of  the  same  tenant  in  tayle, 
and  therefore  it  is  a  discontinuance  in  fee,  ^c. 

Of  this  sufficient  hath  beene  said  before. 


J-336.J  fi^Sect.  630.  ^LT"""" 


AND  note,  that  some  make  discontinuances  for  terme  of  life.     As  if 

tenant  in  tayle  make  a  lease  for  life,  saving  the  reversion  to  him 

as  long  as  the  reversion  is  to  the  tenant  in  tayle,  or  to  his  heires  ;  this  is 

no 

*  this  reversion,  or  rent  service,  or  rent  charge — one  of  tliem,  L.  and  M.  and 
R)h.  but  as  above  in  MSS. 

(A)  Here  "grantor"  seems  printed  by  mistaJce  innlead  of  "  grantee  j"  fur,  in  this  case, 
the  tenctnt  in  tail  is  the  grantor.     See  Mr,  Jiitso's  Jntr.  p.  113. 


336.  a.  336. 1).]   Of  Discontinuance.   L.  3.  C.  11.  S.  631-2. 

no  dhcontinuance  hut  during  the  life  of  tenant  for  life,  cj-c.  And  if  such 
tenant  in  taile  giveth  the  lands  to  another  in  tayle,  saving  the  reversion, 
then  this  is  a  discontinuance  during  the  second  tayle,  ^c. 

^rHIS  is  manifest,  and  hath  beene  handled  before,  and  needeth 
-1  no  explanation;  onely  this  is  to  be  observed,  where  Little- 
ton putteth  hereafter  cases  of  discontinuances  by  feoffement,  &c. 
he  hath  a  double  intendment.  First,  by  feoffement,  or  by  any 
other  conveyance  which  may  make  a  discontinuance.  Secondly, 
(c&c.)  implieth  a  discontinuance  by  a  gift  in  taile,  or  a  lease  for 
life,  &c. 


Sect.  631. 

JDUT  ivhcre  the  tenant  in  tayle  maketh  a  lease  for  yeares  or  for  life, 
the  remainder  to  another  in  fee,  and  delivereth   liverie  of  seisin 
accordingly,  this  is  a  discontinuance  in  fee,  for  that  the  fee  simple  passeth 
by  force  of  the  liverie  of  seisin,  ^c. 

This  is  evident  also,  and  hereof  sufficient  hath  beene  spoken 
before. 


Sect.  632. 

A  ND  it  is  to  be  understood,  that  some  such  discontinuances  are  made 
upon  condition,  ^c.  and  for  that  the  conditions  be  broken,  S^c.  or 
for  other  causes,  according  to  the  course  of  laiv,  such  estates  are  defeated, 
then  are  the  discontinuances  defeated,  and  shall  not  by  force  of  them 
take  any  man  from  his  entrie,  ^c.  *  As  if  the  husband  be  seised  of 
certain  land  in  right  of  his  wife,  and  maketh  a  feoffment  in  fee  upon 
condition,  and  dyeth,  if  the  heire  after  enter  upon  the  feoffee  for  the 
condition  broken,  the  entrie  of  the  tvife  was  congeable  upon  the  heire, 
for  that  by  the  entry  of  the  heire  the  discontinuance  is  defeated,  as  is 
adjudged. 

«  T\TSC0XTlKrANCESma(1e  vpon  condition,  (fr."  Here 
-^  is  to  be  understood  a  diversitie  betweene  a  condition  in 
deed,  whereof  Littleton  here  spoaketh,  and  a  condition  in  law, 
(Ant.  335.  a.)  whereof  somewhat  hath  beene  said  before  in  this  chap- 
ter, 8@°- viz.  where  the  feme  is  tenant  for  life,  and  the  rSSG."! 
husband  maketh  a  feoflFement  in  fee,  and  the  lessor  L  b.  J 
entreth  for  the  condition  in  law. 

"  The  conditions  he  broken,  <&c."     Here  is  implied,  or  any 
cause  siven  either  by  disabilitie  of  the  feoffees,  or  by  any  con- 
dition 

*  The  remaininn-  part  of  the  above  the  case  of  the  grandfother,  father,  and 
Section  is  not  in  L.  and  M.  or  Rnh.  son,  Sect.  637,_is_here  inserted,  with 
nor  in  Pynson,  or  MSS.     But  in  all     some  small  variation. 


L.  3.  C.  11.  Sect.  633.  Of  Discontinuance.  [336.  b.  337.  a. 

dition  performed  on  the  part  of  the  feoffor,  or  otherwise,  whereby 
the  state  is  in  any  sort  avoided. 

''As  if  the  husband  he  seised  of  certaine  land  in  right  of  his  wife,  (2  Rep.  59.) 
&c."    Here  it  appeareth,  that  for  the  condition  broken,  the  heire 
of  the  husband  may  enter;  for  albeit  no  right  descend  from  the 
husband  to  his  heire,  yet  the  title  of  entry  by  force  of  the  con- 
dition which  the  husband  created  upon  the  feoffement,  and  re-  4  H.  6.  2. 
served  to   him  and  his  heires,  doth  descend  to  his  heire :  and  9  H.  7.  24.  b. 
Littleton  saith  truly,  that  so  it  hath  been  adjudged.  ^]  "whkting- 

ham's  case. 

"  Cpon  the  heire."     Nota,  when  the  heire  in  this  case  hath  ^ Ant.  12.  b. 
entred  for  the  condition  broken,  and  hath  avoided  the  feoffement,  *^-  ^-  ^^^-  ^-^ 
the  estate  of  the  heire  vauisheth  away,  and  presently  the  estate 
vesteth  in  the  feme  or  her  heires,  without  any  entry  or  claime 
by  her  or  them  ;  for  the  heire  entreth  in  respect  of  the  condition, 
upon  the  reall  contract,  and  not  of  any  right,  as  hath  beene  said  ; 
and  if  the  husband  himselfe  had  re-entred,  the  state  had  vested 
in  his  wife :  and  therefore  where  Littleton  and  our  bookes  say,  Whittingham's 
that  the  wife  shall  enter  upon  the  heire,  the  meaning  is,  that  case,  ubi  supra, 
after  the  entry  of  the  heire  she  may  re-enter. 


Sect.  633. 

A  LSO,  if  a  woman  inheritrix  hath  a  husband  who  is  within  age,  and 
hee  being  within  age  maJceth  a  feoffement  of  the  tenements  of  his 
wife  in  fee,  and  dieth,  it  hath  beene  a  questio7i,  if  the  u'ife  may  enter  or 
not,  ^c.  And  it  seemeth  to  some,  that  the  entrie  of  the  wife  after  the 
death  of  her  husband,  is  congeable  in  this  case.  For  when  her  husband 
made  such  feoffment,  ^c.  he  might  tvell  enter,  notwithstanding  suchfeoff- 
ment,  ^c.  during  the  coverture ;  and  he  could  not  enter  in  his  owne 
right,  but  in  the  right  of  his  ivife:  ergo,  such  right  as  hee  had  to  enter 
in  the  right  of  his  wife,  ^c.  this  right  of  entrie  remayneth  to  the  wife 
after  his  decease. 

'■j'HE  reason  here  rendred  by  Littleton  is,  for  that  the  husband  Whittingham's 
1    cannot  enter  in  his  owne  right,  but  in  the  right  of  his  wife;  case,  ubi  supra, 
and  the  heire  of  the  husband  cannot  enter,  for  no  right  or  title 
descends  unto  him,  and  the  wife  in  this  case  shall  take  benefit 
of  the  nonage  of  her  husband,  and  enter  into  the  land. 

If  an  infant  be  tenant  for  another  man's  life,  and  make  a  feoffe- 
ment in  fee,  and  cestt/  que  vie  dieth,  the  infant  himselfe  shal  not 
enter,  because  he  hath  no  right  at  all. 

t 33 7.1  0^  If  the  husband  within  age  take  to  wife  feme 
a.  J  tenant  in  taile  generall,  and  the  husband  make  a  gift 
in  taile  and  dieth  within  age,  in  this  case  the  wife  may 
enter,  as  Littleton  here  holdeth,  or  the  heire  of  the  husband  in 
respect  of  the  new  reversion  descended  unto  him  may  enter. 
But  if  the  heire  enter,  presently  thereupon  his  estate  vanisheth. 
If  tenant  in  taile  being  within  the  age  of  one  and  twenty  yeeres 
make  a  feoffment  in  fee,  and  after  is  attainted  of  felony  and  dieth, 
the  entry  of  the  issue  is  not  lawfuU ;  for  his  entry  is  not  law- 
full  in  respect  of  his  estate  only,  but  of  his  blood  also  which 

ia 

Vol.  XL— 38 


337.  a.  337.  b.]  Of  Discontinuance.   L.  3.  C.  11.  S.  634-5. 

is  corrupted  ;  and   therefore  in   that  case  he  is  driven   to  his 
(8  Rep.  43.)  formedon. 

Vk^'\^^\  If  husband  and  wife  be  both  within  age,  and  they  by  deed 

Dmii  fuit  iiifra     indented  joyne  in  a  feoifment  reserving  a  rent,  the  husband 
ffitatem,  6.  dieth,  the  wife  may  enter,  or  have  a  dumfuit  infra  setatem.  But 

n  R  if'  Ah^'       ^^  ''^^  were  of  full  age,  she  shall  not  have  a  dumfuit  infra  setatem, 
634  j    '       '        for  the  nonage  of  her  husband,  albeit  they  be  but  one  person  in 

law. 


Sect.  634. 

A  ND  it  hath  heene  said,  that  if  two  joyntenants  being  within  age 
make  afeoffement  in  fee,  and  one  of  the  infants  die,  and  the  other 
surviveth ;  in  as  much  as  both  the  infants  might  enter  joy ntly  in  their 
lives,  this  right  accrueth  all  to  him  tvldch  surviveth,  and  therefore  hee 
that  surviveth  may  enter  into  the  whole,  ^c.  And  also  the  heire  of  the 
husband  which  made  the  feoffment  within  age  cannot  enter,  ^c.  because 
no  right  descendeth  to  such  heire  in  the  case  aforesaid,  for  that  the  hus- 
band had  never  any  thing  but  in  right  of  his  wife,  ^c. 


21  E.  3.  50.  "  /V/^  -^^  cw/er  into  the  whole,  &c."     And  the  reason   hereof 

8"i    f  E  3  4  ^^  implied  in  this  ((f-c.)  for  that  they  may  joyne  in  a  v/rit 


18  E.  2.  Bre. 


9  H.  0.  fi'.   '         of  right,  and  therefore  the  right  shall  survive.     But  they  cannot 
19  H.  0.  6.  ]oy\i'd\n^  dumfuit  infra,  setatem,  because  the  nonage  of 

'J^H'fi'sf'  *^^^  °"®  ''^^  ^^^  *^^  ^  nonage  of  the  other.  In  this  [337.  "1 
F.  N.  B."l92.  case,  if  one  joyntenant  had  made  a  feoffment  in  fee  and  [_  b.  J 
Seu  of  this  in  died,  the  right  should  not  have  survived,  for  the  joyn- 
tho  Chapter  of  ture  was  Severed  for  a  time.  If  two  ioyntenants  be,  and  the 
(8  Rep.  Whit-  one  is  of  full  age,  and  the  other  within  age,  and  both  they  make 
tinghtim's  case.)  a  feoffment  in  fee,  and  he  of  full  age  dieth,  the  infant  shall  en- 
ter, or  have  a  dumfuit  infra  astattm  but  for  the  moitie. 


(F.  N.  B.  192.  a.  Cppf     aon 

5  Rep.  27.29.  ^^^^'    ^'^'^' 

C  Rep.  3.    9  Rep.  84.  b,    8  Rep.  42.) 

/j  ND  also  when  an  irfant  makes  afeoffmejit  being  within  age,  this 
shall  neither  grieve  nor  hurt  him,  but  that  hee  may  well  etiter,  ^c. 
forjt  should  he  against  reasonthat  such  feoffment  made  by  him  that  ivas 
not  able  to  make  such  a  feoffment  shall  grieve  or  hurt  another,  to  take 
them  from  their  entry,  Sfc.  And  for  these  reasons  it  seemeth  to  some, 
that  after  the  death  of  such  husband  so  being  within  age  at  the  time  of 
the  feoffment,  ^c.  that  his  wife  may  well  enter,  ^c. 

Bract,  fol.  14.       "  7?^^^  ^^"-^  he  may  well  enter,  <&c."    Here  is  implied,  that  he 
Fleta  if  /  c'  3  might  enter  either  within  age,  or  at  any  time  after  full  age, 

(Post!  350.  b!   "    and  likewise  after  his  death  his  heire  may  enter.     Meliorem  enim 
380.  b.)  conditionem  facere  potest  minor  deteriorem  nequaquam. 

N'ota, 

(A)  Vid.  ante  188.  a,  &  note  i  there. 


I 


L.  3.  C.  11.  Sect.  636.       Of  Discontinuance.        [337.  b. 

Nota,  A  speciall  heire  shall  take  advantage  of  the  infancie  of 
the  ancestor.  As  if  tenant  in  taile  of  an  acre  of  the  eustome  of 
borrow  English  make  a  feoffment  in  fee  within  age,  and  dieth, 
the  youngest  sonne  shall  avoid  it;  for  he  is  privie  in  bloud,  and 
claimeth  by  discent  from  the  infant. 

And  so  if  tenant  in  taile  to  him  and  the  heires  females  of  his  ^8  Rep.  54. 
bodie  make  a  feoffment  in  fee  and  dieth  within  age,  having  issue  Ant.  12.  a.) 
a  Sonne  and  a  daughter,  the  daughter  shall  avoid  tlie  feoffment. 
And  so  note,  that  a  cause  to  enter  by  reason  of  infancie  is  not 
like  to  conditions,  warranties,  and  estoppels,  which  ever  descend 
to  the  heire  at  the  common  law. 

The  residue  of  this  Section  upon  that  which  hath  beene  said 
is  evident. 


Sect.  636. 

A  LSO,  if  a  woman  inheritrix  taketh  husband^  and  they  have  issue  a 
Sonne,  and  the  husband  dieth,  and  she  takes  another  hisband,  and 
the  second  husband  letteth  the  land  tvhich  he  hath  in  right  of  his  wife  to 
another  for  terme  of  his  life,  and  after  the  wife  dieth,  and  after  the 
tenant  for  life  surrendereth  his  estate  to  the  second  husband,  cj-c.  qufere, 
if  the  Sonne  of  the  wife  7nay  enter  in  this  ease  upon  the  second  husband 
during  thelife  of  tenant  for  life,  *  ^e.  But  it  is  eleere  law,  that  after 
the  death  of  the  tenant  for  life,  the  son  of  the  ivife  may  enter  ;  because 
the  discontinua7ice,  which  ivas  only  for  terme  of  life,  is  determined,  ^c. 
by  the  death  of  the  same  tenant  for  life  f- 

"  SURRENDER,  (1),"  sursum  rcdditio,  properly  is  a  yeeld-  (Ante,  218. 
^^  ing  up  an  estate  for  life  or  yeares  to  him  that  hath  an  ^'*;''^^:, ^|\- 
immediate  estate  in  reversion  or  remainder,  wherein   the  estate  ][y^''j  '      '"* 
for  life  or  yeares  may  drowne  by  mutuall  agreement  betweeue 
them  (-2). 

^  Note, 

*  <&c.  not  in  L.  and  M.  or  Roh.  t  <f'^-  a<lded  in  L.  and  M.  and  Rob. 


(1)  A  surrender  differs  from  a  release  in  this  respect,  that  the  release  ope- 
rates by  the  greater  estate's  descending  upon  the  less  : — a  surrender  is  the 
falling  of  a  less  estate  into  a  greater.  As  there  is  necessarily  a  privity  of 
estate  between  the  surrenderor  and  the  surrenderee,  no  livery  of  seisin  is 
necessary  to  perfect  a  surrender.  See  2  Bla.  Com.  Ch.  20.— lu  Thompson  v. 
Leach,  2  Salk.  618.  the  court  held,  that  a  surrender  immediately  divests  the 
estate  out  of  the  surrenderor,  and  vests  it  in  the  surrenderee ;  for  this  is  a  con- 
veyance at  common  law,  to  the  perfection  of  which  no  other  act  is  requisite  but 
the  bare  grant ;  and  that,  though  it  be  true,  that  every  grant  is  a  contract, 
and  there  must  be  an  actus  contra  actum,  or  a  mutual  consent,  yet  that  consent 
is  implied ;  that  a  gift  imports  a  benefit ;  that  an  assumpsit  to  take  a  benefit 
may  well  be  presumed ;  and  that  there  is  the  same  reason  why  a  surrender 
should  vest  the  estate  before  notice  or  agreement,  as  why  a  grant  of  goods 
should  vest  a  property  ;  or  sealing  of  a  bond  to  another  in  his  absence  should 
be  the  obligee's  bond,  immediately  without  notice. — [Note  294.] 

(2)  This°doctrine,  that  to  give  a  surrender  legal  effect,  the  surrenderee  must 

have 


338.  a.]      Of  Discontinuance.       L.  3.  C.  11.  Sect.  636. 

(Ante,  218. b.)  fl@°'Note,  there  be  three  kinde  of  surrenders,  viz,  a   ["338. "1 

surrender  properly  taken  at  the  common  law,  which   L     '*'•     J 
is    here    before    described,    and    whereof    Littleton 

speaketh 


have  the  immediate  estate  in  remainder  or  reversion  expectant  on  the  estate 
of  the  surrenderor,  evidently  applies  to  the  common  case  of  a  tenant  for  life, 
with  remainder  to  trustees  during  his  life  to  preserve  contingent  remainders. 
It  is  now  settled  beyond  doubt,  that  the  estate  of  the  trustee  is  vested  estate 
of  freehold.  It  must  therefore  necessarily  prevent  a  surrender  from  the  tenant 
for  life  to  the  ulterior  remainder-man.  In  cases  of  limitations  to  the  father 
for  life,  remainder  to  his  sons  successively  in  tail,  it  was  the  practice  formerly, 
particularly  where  it  was  intended  to  suffer  recoveries  with  single  voucher,  to 
make  the  father  convey  his  estate  to  the  son.  This  was  sometimes  done  by 
surrender.  To  this  there  could  be  no  objection,  where  there  was  no  limitation 
to  trustees  to  preserve.  But  in  those  cases  where  such  a  limitation  was  intro- 
duced, the  deed  necessarily  failed  to  operate  as  a  surrender,  for  the  reason  above 
mentioned.  It  has,  however,  been  contended,  that,  though  in  this  case  the 
deed  was  void  as  a  surrender,  it  would  operate  as  a  covenant  to  stand  seised. 
That,  an  assurance,  where  there  is  a  proper  consideration,  will  operate  as  a 
covenant  to  stand  seised,  though  the  words  used  in  the  deed  point  at  a  different 
mode  of  assurance,  is  placed  beyond  doubt  by  many  authorities  both  ancient 
and  modern.  But  between  those  cases  and  tliat  now  under  consideration, 
there  is  this  striking  difference;  that,  in  all  those  cases  the  estate  vested  in 
the  party  would  be  the  same  both  in  quantity  and  quality,  whether  the  deed 
operated  in  the  mode  imported  by  the  language  of  the  deed,  or  in  any  other 
mode.  But  in  the  case  under  consideration,  if  the  deed  operated  by  way  of 
surrender,  the  party  would  take  one  kind  of  estate;  if  it  operated  by  way  of 
covenant  to  stand  seised,  he  would  take  another.  For  if  it  could  operate  by 
way  of  surrender,  the  father's  life  estate  would  be  immediately  extinguished, 
and  the  son  would  become  tenant  in  tail  in  possession :  if  it  operated  by  way 
of  covenant  to  stand  seised,  the  father's  life  estate  would  immediately,  by  the 
statute  of  uses,  be  transferred  to  the  son,  and  he  would  become  tenant  for  life 
of  his  ftither,  remainder  to  trustees  to  preserve,  remainder  to  himself  in  tail. 
Then  supposing  him  to  die  without  issue  in  the  father's  lifetime,  if  the  deed 
operated  by  way  of  surrender,^  the  person  entitled  in  remainder  next  expect- 
ant upon  the  estate  tail  of  the  sou  would  be  entitled  to  enter  immediately  :  but 
if  the  deed  operated  by  way  of  covenant  to  stand  seised,  there  would  be  an 
estate  of  special  occupancy  during  the  father's  life,  and  the  next  remainder 
man  would  not  be  entitled  to  take  until  the  father's  decease.  To  this  it  may 
be  replied,  that  the  object  of  the  parties  was,  that  the  son  should  by  virtue  of 
tlie  deed  become  seised  of  the  lands  for  a  particular  purpose.  It  is  found,  that 
it  canuot  have  that  effect  if  its  mode  of  operation  be  that  which  the  parties 
themselves  intended,  but  that,  if  the  deed  is  hold  to  operate  in  another  mode, 
it  will  accomplish  the  object  of  the  parties.  The  courts  therefore,  it  may  be 
said,  conformably  to  their  usual  practice  of  effectuating  the  intent  of  parties, 
when  it  can  be  done,  will  construe  the  deed  to  operate  in  that  mode  of  assurance 
in  which  it  can  take  effect,  and  consequently  consider  the  deed  to  operate  by 
way  of  covenant.  It  is  observable,  that  when  the  tenant  to  the  praecipe  in  a 
recovery  is  made  by  bargain  and  sale,  it  sometimes  happens  that  the  bargain 
«ind  sale  is  not  enrolled.  But  frequently  in  these  cases  the  lands  are  out  upon 
leases  for  years,  or  in  the  hands  of  tenants  at  will ;  where  this  is  the  case 
there  seems  room  to  contend,  that  the  deed,  though  void  as  a  bargain  and 
sale  for  want  of  inrolment,  may  operate  as  a  grant  of  the  reversion  expectant  on 
these  particular  estates. — [Note  294*.] 


L.  3.  C,  11.  Sect.  636.     Of  Discontinuance.        [338.  a. 

speaketh  (1).     Secondly,  a  surrender  by  custome  of  lands  holdcn 

by  copy,  or  of  customary  estates,  whereof  you  have  read  before,  2Eliz  Dier  176 

Sect.  74,  and  a  surrender  improperly  taken  (as  a])peares  before,  14  H.  7.  3. 

S«ct.  550),  of  a  deed.     And  so  of  a  surrender  of  a  patent,  and  ^^  p*^ '^J^* 

of  a  rent  newly  created,  and  of  a  fee  simple  to  the  king.  ^  y'  ^  "^ 

12H.  4.  21.     13  H.' 4.  13. 
A  surrender  properly  taken  is  of  two  sorts,  viz.  a  surrender  in 

deed,  or  by  expresse  words,  (whereof  Littleton  here  putteth  an  14  jj.  8.  1.5. 

example)  and  a  surrender  in  law  wrought  by  consequent  by  ope-  37  H.  6.  17. 

ration  of  law.     Littleton  here  putteth  his  case  of  a  surrender  of  ^^  ]},•  "J-  Jj- 

an  estate  in  possession,  for  a  right  cannot  bee  surrendered.  And  3^  ^jg  ■9^,  ' 

it  is  to  be  noted,  that  a  surrender  in  law  is  in  some  cases  of  50  E.  3.  <!. 

greater  force  than  a  surrender  in  deed.     As  if  a  man  make  a  '*f  ^^^-  ''■ 

lease  for  yeares  to  begin  at  Michaelmasse  next,  this  future  inte-  jjiar'si 

rest  cannot  be  surrendered,  because  there  is  no  reversion  wherein  8  Ass.  20. 

it  may  drowne;  but  by  a  surrender  in  law  it  may  be  drowned.  ^  Ma.  Dier,  141. 

As  if  the  lessee  before  Michaelmasse  take  a  new  lease  for  yeares  j^j^^  '.;^q 

either  to  begin  presently,  or  at  Micluielmasse,  this  is  a  surrender  6  H.  7.  9. 

in  law  of  the  former  lease.     Fortior  <fc  wouior  est  disnosiiio  leqis  3"  H-  6.  1". 

qiiam  hominis  (2).  ^^  y'  i'  ^" 

Lib.  6.  f.  69.  Sir  Moyle  Finche's  case.  (5  Rep.  11.  1  Leo.  323.  4  Rep.  53.) 
(10  Rep.  67.  6  Rep.  69.  Cro.  Jac.  84.  2  Roll.  Abr.  494.  Ant.  47.  b.  Dyer,  58  ) 
19  H.  6.  33.     27  Ass.  46.     14  H.  7.  4.     1  H.  6.  1.     PI.  Com.  541. 

-  Also  there  is  a  surrender  without  deed,  whereof  Littleton 
putteth  here  an  example  of  an  estate  for  life  of  lands,  which  may 
be  surrendered  without  deed,  and  without  livery  of  seisin;  be- 
cause it  is  but  a  yeelding,  or  a  restoring  of,  the  state  againe  to 
him  in  the  immediate  reversion  or  remainder,  which  are  alwayes 
favoured  in  law.  And  there  is  also  a  surrender  by  deed ;  and 
that  is  of  things  that  lie  in  grant,  whereof  a  particular  estate 

cannot 


(1)  By  the  stat.  29  Cha.  II.  c.  3.  sect.  3.  no  leases,  &c.  either  of  freehold  or 
terras  of  years,  or  any  uncertain  interest,  not  being  copyhold  or  customary 
interest,  shall  be  surrendered,  unless  it  be  by  deed  or  note  in  writing,  signed 
by  the  party  surrendering/  the  same,  or  his  agents  thereunto  lawfully  authorized 
by  writing,  or  by  act  and  operation  of  law.  Upon  this  statute  it  was  held,  by 
lord  chief-baron  Glilbert,  in  Magennis  v.  Mac-Cullogh,  Gilb.  Ca.  in  Eq.  2oG. 
that  a  lease  for  years  cannot  be  surrendered  by  cancelling  of  the  indenture  with- 
out writing  ;  because  the  intent  of  that  statute  was  to  take  away  the  manner 
they  formerly  had  of  transferring  interests  to  lands  by  signs,  .symbols,  and 
words  only;  aod  therefore,  as  a  livery  and  seisin  on  a  parol  feoffment,  was  a 
sign  of  passing  the  freehold  before  the  statute,  but  is  now  taken  away  by  the 
statute ;  so  the  cancelling  of  a  lease  was  a  sign  of  a  surrender  before  the  statute, 
but  is  now  taken  away,  unless  there  be  a  writing  under  the  hand  of  the  party. 
In  Farmer  d.  Earl  v.  llogcrs,  2  Wiis.  p.  27.  it  was  held,  that  the  statute  docs 
not  make  a  deed  absolutely  necessary  to  a  surrender;  for  it  directs  it  to  be 
made  either  by  deed  or  wjte  in  loritimj  ;  and  when  it  is  made  by  a  note  in 
writing,  there  is  no  occasion  for  any  stamp-duty,  it  not  being  a  deed.  But  see 
55  Geo.  HI.  c.  184.  sch.  part  1,  under  the  head  Surrender. — [Note  295.] 

(2)  For  the  first  lease  and  the  second  cannot  subsist  together,  and  the  par- 
ties, by  making  a  contract  of  as  high  a  nature  for  the  same  thing,  tacitly  con- 
sented to  dissolve  the  former;  for  without  the  dissolution  of  that,  the  lessor 
could  not  grant  to  the  lessee  that  interest  which  was  already  pas.sed  from  the 
lessor  to  the  lessee  by  the  first  lease.     Note  to  the  Wth  edition. — [Note  296.] 


338.  a.  338.  b.J    Of  Discontinuance.   L.  3.  C.  11.  S.  636. 

cannot  commence  without  deed,  and  by  consequent  the  estate 
cannot  be  surrendered  without  deed.  But  in  the  example  that 
Litth'ton  here  putteth,  the  estate  might  commence  without  deed, 
and  therefore  might  bee  surrendered  without  deed.  And  albeit 
a  particular  estate  be  made  of  lands  by  deed,  yet  may  it  be  sur- 
rendred  without  deed,  in  respect  of  the  nature  and  cjualitie  of 
the  thing  demised,  because  the  particular  estate  might  have 
beene  made  without  deed  ;  and  so  on  the  other  side  (A).  If  a 
man  be  tenant  by  the  courtesie,  or  tenant  in  dower  of  an  advow- 
(Ant.  225.  b.  son,  rent,  or  other  thing  that  lies  in  grant ;  albeit  there  the 
9  r'  n'^Aif^^"  estate  begin  without  deed,  yet  in  respect  of  the  nature  and 
498.)  *  ^'  qualitie  of  the  thing  that  lies  in  grant  it  cannot  be  surrendered 
without  deed.  And  so  if  a  lease  for  life  be  made  of  lands,  the 
remainder  for  life ;  albeit  the  remainder  for  life  began  without 
deed,  yet  because  remainders  and  reversions,  though  they  be 
of  lands,  are  things  that  lie  in  grant,  they  cannot  be  surrendred 
without  deed.  See  in  my  Reports  plentifuU  matter  of  sur- 
renders. 

(10  Rep.  66.  "  Queers,   if  the  Sonne  of  the   wife  may  enter,  &c."     Here 

'■■'  Littleton  maketh  a  qua're.     So  as  grave  and  learned  men  may 

doubt,  without  any  imputation  to  them  ;  for  the  most  learned 

doubteth  most,  and  the  more  ignorant  for  the  most  part  are  the 

more  bold  and  peremptory. 

It  is  holdcn  of  some,  that  after  the  surrender  the  issue  in  taile 
during  the  life  of  tenant  for  life  may  enter ;  for  that  having 
regard  to  the  issue,  the  state  for  life  is  drowned,  and  conse- 
quently the  inheritance  gained  by  the  lease  is  by  the  acceptance 
of  the  surrender  vanished  and  gone  :  as  if  tenant  in  taile  make 
a  lease  for  life,  whereby  he  gaineth  a  new  reversion 
(as  hath  fi®°"  beene  said)  if  tenant  for  life  surrender  ["338."] 
to  the  tenant  in  taile,  the  estate  for  life  being  drowned,  L  b.  J 
the  reversion  gained  by  wrong  is  vanished  and  gone, 
and  he  is  tenant  in  taile  againe  against  the  opinion  obiter  of 

21  H.  6.  53.  Fortingfon,  21  71.  6.  53. 

(Ant.  185.  l^ut  herein  are  two  diversities  worthy  of  observation.     The 

8  Rep.  145.)        first  is,  that  having  regard  to  the  parties  to  the   surrender,  the 

estate  is  absolutely  drowned,  as  in  this  case  betweene  the  lessee 
and  the  second  baron.  But  havina;  re.o;ard  to  strano-ers,  who 
were  not  parties  or  privies  thereunto,  lest  by  a  voluntary  sur- 
render they  may  receive  prejudice  touching  any  right  or  interest 
they  had  before  the  surrender,  the  estate  surrendered  hath  in 
f^^'-^V^^'  consideration  of  law  a  continuance  (1).     As  if  a  reversion  be 

9  E.  4. 18.  granted  with  warrantie,  and  tenant  for  life  surrender,  the  grantee 

shall  not  have  execution  in  value  against  the  grantor,  who  is  a 

stranger  during  the  life  of  tenant  for  life;  for  this  surrender 

shall  woi'ke  no  prejudice  to  the  grantor  who  is  a  stranger. 

n^F^V^io'^'  ^^  ^^'  tPD'iiit  ^'Ji'  ^ife  surrender  to  him  in  reversion  being  within 

1  H.  6.  1.'  ^S^>  b^  shall  not  have  his  age;  for  that  should  be  a  prejudice  to 

24  E.  3.  77.  a  stranger,  who  is  to  become  demandant  in  a  reall  action. 

If 

(A)  Here  the  Bense  appears  to  require  a  comma  only  after  the  word  "  side  :"  and  perhaps 
there  should  be  a  period  after  the  precedinij  words  "  because  the  particular  estate  iniglit 
have  been  made  without  deed.-"     .^ee  i/r.  Bitso's  Intr.  p.  116,  117. 


(1)  On  the  surrender  of  term  of  years  by  one  termor  for  years  to  another 
termor  for  years,  see  Hughes  v.  Robotham,  1st  Cro.  302. 


L.  3.  C.  11.  Sect.  636.       Of  Discontinuance.        [338.  b. 

If  tenant  for  life  grant  a  rent  charge,  and  after  surrender,  yet  5  H.  5.  8. 
the  rent  remaineth,  for  to  that  purpose  he  commeth  in  under  the  ^^j^^g'  ^^• 
charge.      Causa  qua  sujyrd.  (6  Rep.  79. 

If  a  bishop  be  seised  of  a  rent  charge  in  fee,  the  tenant  of  7  Rep.  38. 
the  land  enfeoffe  the  bishop  and  his  successors,  the  lord  enter  Ant.  184.  b.) 
for  the  mortmaiue,  he  shall  hold  it  discharged  of  the  rent;  for 
the  entrie  for  the  niortmaine  affirmeth  the  alienation  in  mort- 
niaine,  and  the  lord  claimeth  under  his  estate;  but  if  tenant  for 
life  grant  a  rent  in  fee,  and  after  infeolfe  the  grantee,  and  the 
lessor  enter  for  the  forfeiture,  the  rent  is  revived,  for  the  lessor 
doth  claime  above  the  feoifment.     But  if  I  grant  the  reversion  (Ant.  234.) 
of  my  tenant  for  life  to  another  for  terme  of  his  life,  and  tenant  48  E.  3.  ic. 
for  life  attorue,  now  is  the  waste  of  tenant  for  life  dispunish-  (^^o-  ^^-^ 
able  (2).     Afterwards  I  release  to  the  grantee  for  life  and  his 
heires,  or  grant  the  reversion  to  him  and  his  heires;  now  albeit 
the  tenant  for  life  be  a  stranger  to  it,  yet  because  he  attorned 
to  the  grantee  for  life,  the  estate  for  life  which  the  grantee  had 
shall  have  no  continuance  in  the  eye  of  the  law  as  to  him,  but 
he  shall  be  punished  for  waste  done  afterward. 

The  second  diversitie  is,  that  for  the  benefit  of  an  estranger  (Plo.  Com.  196.) 
the  estate  for  life  is  absolutely  determined.  As  if  he  in  the 
reversion  make  a  lease  for  yeares,  or  grant  a  rent  charge,  &c. 
and  then  the  lessee  for  life  surrender,  the  lease  or  rent  shall 
cqmmence  maintenant.  So  in  the  case  of  Littleton,  first,  be- 
tweene  the  lessee  and  the  second  husband,  the  state  for  life  is 
determined;  and  secondly,  for  the  benefit  of  the  issue  it  shall 
be  so  adjuged  in  law.  Here  note  a  diversitie,  when  it  is  to 
the  prejudice  of  a  stranger,  and  when  it  is  for  his  benefit. 

If  a  man  maketh  a  lease  to  A.  for  life,  reserving  a  rent  of  40 
shillings  to  him  and  his  heirs,  the  remainder  to  B.  for  life,  the 
lessor  grant  the  reversion  in  fee  to  B.  A.  attorne,  B.  shall  not 
have  the  rent,  for  that  although  the  fee  simple  doe  drowne  the 
remainder  for  life  betweene  them,  yet  as  to  a  stranger  it  is  in 
esse;  and  therefore  B.  shall  not  have  the  rent,  but  his  heire  shall 
have  it. 

A  master  of  an  hospitall  being  a  sole  corporation,  by  the  con-  (4.  Leo.  37. 
sent  of  his  brethren  makes  a  lease  for  yeares  of  part  of  the  pos-  Hob.  3.) 
sessions  of  the  hospitall ;  afterwards  the  lessee  for  years  is  made  fg  ^]."'f/E]i^ 
master,  the  terme  is  drowned;  for  a  man  cannot  have  a  terme  int.  Turner  pi. 
for  yeares  in  his  owne  right  and  a  freehold  in  auter  droit  to  con-  &  Gray  del',  in 
sist  together  (as  if  a  man  lessee  for  yeares  take  a  feme  lessor  to  ^"^^^ 
wife)  (o).      [rt]  But  a  man  may  have  a  treehold  m  his  owne  right  ^o!xnw,  Rot.  945. 
and  a  terme  in  auttr  droit:  and  therefore  if  a  man  lessor  take  Sir  Fr.ancis 
the  feme  lessee  to  wife,  the  terme  is  not  drowned,  but  he  is  FJj  g'j"f  ^  "J'®" 
possessed  of  the  lerme  in  her  right  during  the  coverture  \h].  \,^  Com.  418. 
So  if  the  lessee  make  the  lessor  his  executor,  the  terme  is  not  [h]  32  H.  8. 
drowned.      Causd  qua  suprd  (4).  J^;  Surrender, 

(2  Cro.  275.  Mo.  54.) 

But 

(2)  See  note  2.  ante,  218.  b. 

(3)  Cont.  Lichden  v.  Winsmore,  1  Roll.  Abr.  934.  and  lady  Piatt  v.  Sleap, 
Cro.  Jac.  275 ;  and  see  Mr.  Sugdeu's  treatise  on  Vendors  and  Purchasers, 
4th  ed.  p.  336. 

(4)  Mergers  were  never  favored  in  courts  of  law,  and  still  less  in  courts  of 
equity.  Hence,  even  in  a  very  early  period  of  the  equitable  jurisdiction  of  the 
court  of  chancery,  it  was  admitted,  that  a  fine  or  feoffment  to  lessee  for  years 

to 


338.  b.  339.  a.]  Of  Discontinuance.  L.  3.  C.  11.  Sect.  637. 

But  if  it  had  beene  a  corporation  aggregate  of  many,  the 
making  of  the  lessee  master  had  not  extinguished  the  terme, 
no  more  than  if  the  lessee  had  beene  made  one  of  the  brethren 
of  the  hospitall. 


*  Sect.  637. 

F  yVTO  TE^  that  an  estate  taile  cannot  bee  discontinued,  out  there  where 
I  hee  that  makes  the  discontinuance  was  once  seised  by  force  of  the 

taile,  unlesse  it  bee  by  reason  of  a  warranty,  ^c.  As']  if  there  be  a  grand- 
father, father,  and  son,\  and  the  grandfather  is  tenant  in  taile,  and  is 
disseised  by  the  father  who  is  his  son,  and  the  father  maketh  a  feoffment  of 
this  without  warranty  and  die,  and  afterivards  the  grandfather  dies,  the 
son  may  wel  enter  upon  the  feoffee,  because  this  was  no  discontinuance, 
inasmuch  as  the  father  was  not  seised  by  force  of  the  entaile  at  the  time  of 
thefeoffment,  ^c.  but  was  seized  in  fee  by  the  disseisin  of  the  grandfather. 

Vide  Sect.  658.  "  f^^^CE."  Here  it  is  to  be  observed,  that  it  not  necessary 
(1  Roll.  Abr.  that  the  tenant  in  taile  bee  ever  seised  of  an  estate  taile  at 

^^■*--*  the  time  when  the  discontinuance  of  the  whole  estate  is 

begun  ;  as  if  tenant  in  taile  make  a  lease  B@°"  for  life,  ^339.1 
whereby  he  gaineth,  as  hath  beene  said,  a  fee  simple  L  '^^  J 
by  wrong;  in  this  case  if  he  grant  the  reversion  in  fee, 
and  the  lessee  dieth,  the  whole  estate  is  discontinued;  and  yet  at 
the  time  of  the  grant  (by  which  the  discontinuance  continueth) 
hee  was  not  seised  by  force  of  the  taile :  and  therefore  Littleton 

materially 

*  The  part   of  this  section  within  that  part  of  the  work  which  is  distin- 

crotchets  is  not  either  in  L.  and  M.  guished  by  Sect.  632. 

or  Roh.  or  MSS.   and  the  remainder  f  and  the  grandfather  is  tenant  in 

of  this  Section  in  those  copies  imme-  taile,  and  is  disseised  hi/ tlie  father  who 

diately  follows  (with  a  small  variation)  is  his  son,  not  in  L.  and  M. 


to  the  use  of  a  stranger,  did  not  extinguish  the  terme ;  because  the  cestui  que  vse 
had  no  method  to  compel  the  execution  of  it,  but  through  the  medium  of  the 
court  of  chancery;  and  the  court  would  not  compel  him  to  execute  it  to  his 
own  prejudice  during  the  continuance  of  the  term.  The  statute  of  uses 
expressly  saves  the  rights  of  the  feoflPee  to  the  use;  this  preserves  him  the 
benefit  of  any  terms  which  may  be  vested  in  him.  Even  where  a  termor  for 
years  was  made  a  tenant  to  the  pracipe,  it  was  determined,  that  the  momentary 
freehold  vested  in  him,  for  the  purpose  of  making  him  tenant,  did  not  extinguish 
the  terme.  Sir  John  Ferrers  and  sir  John  Curson  v.  sir  Richard  Fcrmor  and 
others,  Cro.  Jac.  048.  It  has  by  some  been  said  dangerous  to  make  feof- 
fees or  releasees  to  uses  trustees  for  terms  of  years,  if  they  are  also  trustees 
for  preserving  contingent  remainders;  for  if  they  should  have  occasion  to  enter 
for  the  forfeiture  of  the  tenant  for  life,  it  may  be  made  a  question,  whether, 
at  least  in  law,  that  would  not  be  a  merger  of  their  term.  The  profession 
have  lately  been  favoured  by  Mr.  Preston  with  a  complete  and  profound 
treatise  on  the  abstruse  doctrine  of  Merger,  in  the  third  volume  of  his  Treatise 
on  Conveyancing.  It  is  hoped  that  they  will  soon  be  favoured  by  the  same 
learned  gentleman  with  a  new  edition  of  his  valuable  Essay  on  the  Quantity 
of  Estates. — [Note  297.] 


L.  3.C.  11.  Sect.  638.  Of  Discontinuance.  [339.  a.  339.  b. 

materially  added  this   word  (once),  that  is,  that   hee  was   once  Vide  Sect.  592. 
seised  by  force  of  the  estate  taile  :  and  seeing  that  (as  hath  beene  g^^'  g'-^ 
said)  a  discontinuance  is  a  privation,  the  rule  of  law  agreeth  well 
with  the  rule  of  philosophic,  that  07nnis  prioatio p'i'cesupjxjitit 
hahitiim  and  therefore  he  cannot  discontinue  that  estate  which 
he  never  had. 

"  Ualesse  it  be  hi/  reason  of  a  warranty,  c&c."  For  in  many  cases 
a  warrantie  added  to  a  conveyance  is  said  to  make  a  discontinu- 
ance ah  effecta,  although  he  that  made  the  conveyance  was  never 
seised  by  force  of  the  estate  taile,  because  it  taketh  away  the 
entrie  of  him  that  right  hath,  as  a  discontinuance  doth.  As  if 
tenant  in  taile  be  disseised  and  dieth,  and  the  issue  in  taile  re-  ?2^f*V  n 
lease  to  the  disseisor  with  warrantie  ;  in  this  case  the  issue  was  21  e!  4.  97*. 
never  seised  by  force  of  the  taile ;  and  yet  this  hath  the  effect  of 
a  discontinuance  by  reason  of  the  warrantie,  and  the  reason 
hereof  appeareth  before  in  this  Chapter. 

"  The  son  may  wel  enter."     But  if  the  father  that  made  the 
feoffment  had  survived  the  grandfather,  he  should  never  have  15  E.  4. 
entred  against  his  own  feoffment ;   but  albeit  the  father  had  sur-  ^'^'^'^"f-  ^^-  * 
vived,  yet  after  his  decease  the  sonne  should  have  entred,  for  21°  e.  l^^^j^ 
the  reason  here  yeelded  by  Littleton.     But  if  the  feoffment  had  9  E.  4. 19. 
beene  with  warrantie,  then  it  had  wrought  the  effect  of  a  discon-  39  H.  6.  45. 

•  •  •  21  H    6   52 

tinuance :  and  therefore  Littleton  saith  without  warrantie.  ^^  e  4  11 

1  Mar.  Dier,  98.     (Ant.  265.) 


Sect.  638. 

A  LSO,  if  tenant  in  taile  make  a  lease  to  another  for  terme  of  life,  and 

the  tenant  in  tayle  hath  issue  and  dieth,  and  the  reversion  desceiideth 

to  his  issue,  arid  after  the  issue  granteth  the  reversion  to  him  descended, 

to  another  in  fee,  and  the  tenant  for  life  attorne  and  die,  and  the  grantee 

of  the  reversion  enter,  ^c.  (et  le  tenant  a  terme  de  vie  attourna  *  et  devie, 

et  le  grantee  del  reversion  enter,  &c.)  and  is  seised  in  fee  in 

[339.1  the  life  of  the  issue,  and  after  the  issue  in  tayle  hath  |C7^  issue 
b.     J   a  son  and  dieth,  it  seems  tJiat  this  is  discontinuance  to  tlie  son, 
hut  that  the  son  may  enter,  tj-c.  for  that  his  father,  to  whom  the 
reversion  of  the  fee  simple  descended,  had  never  any  thing  in  the  land 
by  force  of  the  entaile,  cj-c. 


0 


F  this  opinion  is  Littleton  in  our  bookes.  15  E.  4. 

Diseont.  .30. 
4.3  Ed.  3.  6.     21  H.  6.  52.     4  H.  7.  17.  (1  Roll.  Abr.  634.)     (4  Leo.  39.  160.  156.) 

"  The  grantee  of  the  reversion  enter,  &c."  Here  it  is  to  be 
understood  and  observed,  that  in  this  case  of  the  grant  of  the 
reversion  Littleton  doth  not  say  without  warranty;  because  if  a 
warrantie  had  been  added,  it  had  wrought  no  discontinuance, 
for  that  (as  hath  beene  said)  the  discontinuance  in  judgment  of  21  ^•.^„^^2,  53. 
law  was  but  for  life  :  but  when  the  addition  of  a  warrantie  doth  ^  °  '  ■■' 
worke  a  discontinuance,  then  Littleton  saith  without  warranty, 
as  you  may  observe  often  in  this  Chapter. 

Sect. 

*  et  devie,  et  le  grantor  del  reversion     terme  dc  vie  morust,  et  celuy  en  le  re- 
enter,   &c. — &c.  et   puis   le   tenant   a     yeision  cntra^  &c.  L.  and  JU.  and  Boh. 


339.b.340.a.]  Of  Discontinuance.  L.3.C.11.S.639-40-41. 


Sect.  639. 

tpOR  if  a  man  seised  in  the  right  of  his  wife,  letteth  the  same  land  to 
another  for  terme  of  life,  noio  is  the  reversion  of  the  fee  simple  to  the 
husband,  ^c.  And  if  the  husband  dieth,  living  hisivife  and  thetenayit 
for  life,  f  and  the  reversion  descend  to  the  heire  of  the  husband,  if  the 
heire  of  the  husband  grant  the  reversion  to  another  in  fee,  and  the  ten- 
ant attorne,  S^c.  and  afterivards  the  tenant  for  life  dieth,  and  the  grantee 
of  the  reversion  in  this  case  enter :  |  iii  this  case  this  is  no  discontinu- 
ance to  the  wife,  but  she  may  well  enter  upon  the  grantee,  ^c.  because 
the  grantor  had  notMng  at  the  time  of  the  graunt,  in  the  right  of  his 
(A)  wife,  when  hee  made  the  graunt  of  the  reversion. 

14.  ^-  ^-  "  Jp  OR  if  a  man  seised  in  (he  right  of  his  \cife,  letteth,  &c." 
l8*Ass  p  2  Here  Littleton  putteth  his  case  where  the  barou  onely  makes 

18  E.  3.  54.  a  lease  for  life;  for  if  he  and  his  wife  joyne  in  a  lease  by  deed, 

38  E.  32.  there  the  reversion  is  not  discontinued.     See  before,  Sect.  620. 

21  h'6'5'>'53  More  need  not  be  said  hereof,  in  respect  the  like  case  of  tenant 

1 5  E.  4.     '     *  in  taile  hath  been  explained  before. 


Discont.30. 


(1  Roll.  634.) 


I@-Sect.  640.  Pt^'] 


AJ^D  so  it  seemeth,  that  men  ivhich  are  inheritable  by  force  of  an  en- 
taile,  and  never  ivere  seised  by  force  of  the  same  entaile,  that  such 
feojfments  or  grants  by  them  made  without  clause  of  warrantie,  is  no 
discontinuance  to  their  issues  after  their  decease,  but  that  their  issues 
may  well  enter,  S^c.  albeit  they  ivhich  made  such  graunts  in  their  lives 
were  forebarred  to  enter  by  their  owne  act,  ^-c. 


(10  Rep.  95.)  Sect.  641. 

AND  if  tenant  in  taile  hath  issue  two  sonnes,  and  the  eldest  disseiseth 
his  father,  and  thereof  maketh  a  feoffment  in  fee  without  clause  of 
warrantie,  and  die  withoiit  issue,  and  after  the  father  die,  the  youngest 
son  may  well  enter  upon  the  feoffee  ;  for  that  the  feoffment  of  his  elder 
brother  cannot  be  a  discontinuance,  because  he  ivas  'never  seised  by  force 
of  the  same  tayle.  For  it  seemed  to  be  against  reason,  that  by  matter 
in  fact,  ^c.  without  clause  of  warrantie,  a  man  should  discontinue  a  § 
deed  (B)  Sj-c.  that  was  never  seised  by  force  of  the  same  taile*. 

Vide  Sect  592.    V|OTE,  there  also  in  these  two  Sections  appeareth,  that  (as 
596,  597.  601.      J_>j    j^^^j^  beene  said  before)  a  warrantie,  though  he  were  never 

seised 

t  and  not  in  L.  and  M.  and  Roh.  §  deed — taile,  L.  and  M. 

j  in  this  case  not  in  L.  and  M.  or  Roh.     *  <&c,  added  in  L.  and  M.  and  Roh. 

(A)  Here  "his"   seems  to  be  printed  by  mistake  instead  of  "the."     For  it  is  not  the  husband 
v:ho  is  here  spoken  of ,  but  tM  heir  of  the  hnsbaud.      See  Mr.  liitso's  Intr.  p.  113. 

(B)  Here  the  sense  appears  to  require  the  word  "  tail"  instead  of  the  word  "  deed."     See  lord 
Coke's  observation  above,  and  Mr.  Jtitso's  Intr.  p.  113. 


L.  3.  C.  11.  S.  642-3-4.  Of  Discontinuance.  [340.  a.  340.  b. 

seised  by  force  of  the  taile,  may  worke  the  effect  of  a  discon- 
tinuance. 

"A  man  should  discontinue  a  deed,  &c"  This  is  mistaken, 
and  should  be,  a  man  should  discontinue  a  taile;  and  so  is  the 
originall. 

r340.i  m-  Sect.  642. 

t  WOTE,  if  there  he  lord  and  tenant,  and  the  tenant  giveth  lands  to 
another  in  4.  taile,  the  remainder  to  another  in  fee,  and  after  the 
tenant  in  taile  makes  a  lease  to  a  man  for  a  terme  of  life,  p.  saving 
the  reversion,  c^c.  and  after  granteth  the  reversion  to  another  in  fee,  and 
the  tenant  for  life  attorne,  c^c.  and  after  the  grantee  of  the  reversion  die 
without  heire,  now  the  same  reversion  commeth  to  the  lord  by  way  of 
escheat.  If  in  this  case  the  tenant  for  life  dieth,  and  the  lord  hy  force 
of  his  escheat  enter  into  the  life  of  tenant  in  taile,  and  after  the  tenant 
in  taile  dieth,  it  seemeth  in  this  case  that  this  is  no  discontinuance  to 
the  issue  in  taile,  nor  to  him  in  the  remairider,  but  that  he  may  well 
enter,  because  the  lord  is  in  by  way  of  escheat,  and  not  by  the  tenant  in 
tayle.  But  othertvise  it  should  be,  if  the  reversion  had  beene  executed 
in  the  grantee  in  the  life  of  tenant  in  tayle,  for  then  had  the  grantee 
been  in  the  tenements  by  the  tenant  in  tayle,  |  ^c. 

rPHE  reason  of  this  case  is  here  rendred  (as  before  it  was  in  Vide  Sect.  620. 
1    this  Chapter),  that  albeit  the  reversion  be  executed  in  the 
lord  by  escheat  in  the  life  of  tenant  in  taile,  yet  because  he  is 
not  in  by  the  tenant  in  taile  but  by  escheat,  it  worketh  no  dis- 
continuance.    But  if  it  had  beene  executed  in  the  life  of  tenant  Lib.  1.  fol.  136. 
in  taile  in  the  grantee  which  was  in  by  tenant  in  taile,  then  the  Lib.  3.  fol.  62, 
lord  by  escheat  should  have  taken  advantage  of  it.     But  of  this 
sufficient  hath  beene  said  before  in  this  Chapter. 

I 

Sect.  643,  644,  &  645. 

A  LSO,  if  a  parson  of  a  church,  or  vicar  of  a  church,  alien  certaine 
lands  or  tenements  jmrcell  of  his  glebe,  c^c.  to  another  in  fee,  and  die 
or  resigne,  ^c.  his  successor  may  well  enter,  notwithstanding  such  alien- 
ation, as  is  said  in  a  Nota  2  H.  4.  Termino  Mich,  which  heginneth  thus. 

Sect.  644. 

"NT  OTA  quod  dictum  fuit  pro  lege,  in  a  writ  of  account  brought  by  a 
^  master  of  a  college  against  a  chaplaine  (en  un  briefe  de  accompt 
port  per  un  master  d'un  college*  vers  un  chapleine)  that  if  a  'parson,  or 
vicar,  grant  certaine  land  which  is  of  the  right  of  his  church  to  another  and 
die,  or  changeth,  the  successor  may  enter,  ^c.     And  I  take  the  cause  to 

bee, 

-t-  ^ote,—Also,  L.  and  M.  and  Eoh.         |  &c.  not  in  L.  and  M.  or  Roh. 
i  taile,  the  remainder  to  another,  in,       *  vers  un  chapleine— d'un  chapel, 
not  in  L.  and  M.  or  lloh.  L.  and  M.  and  Roh. 


UO.  b.311.a.J  Of  Discontinuance.  L.  3,  C.  11.  Sect.  645. 

bee,  for  that  the  parson,  or  vicar,  that  is  seised,  ^c.  as  in  right  of  his 
church,  hath  no  right  of  the  fee  simple  in  the  tenements,  hut  (A)  the  right 
of  the  fee  simple  abideth  in  another  person  (et  jeo  croy  que  la  cause  est, 
pur  ceo  que  le  parson,  ou  vicar,  que  est  seisie,  &c.  come  en  droit  de  son 
esglise,  n'ad  pas  droit  de  fee  simple  en  les  tenements,  ^  et  (B)  le  droit 
de  fee  simple  de  ceo  deraurt  en  ascun  auter  person) ;  and  for  this  cause 
his  successor  may  well  enter,  notwithstanding  such  alienation,  ^c. 

Sect.  645. 

J^OR  a  bishop  may  have  a  writ  of  right  of  the  tenements  of  the  right 
of  his  church,  for  that  the  right  is  in  his  chapiter,  and  the  fee  simple 
abideth  in  him  and  in  his  chapiter  (Car  un  evesque  poit  aver  breve  de 
droit  de  f  tenements  de  droit  de  son  esglise,  pur  ceo  que  le  droit  est  en 
son  chapiter,  et  le  fee  simple  demurrant  en  luy  et  en  son  chapiter).  And 
a  deane  may  have  a  writ  of  right,  because  the  right  remaynes  in  him. 
XAnd  an  abbot  may  have  a  writ  of  right,  for  that  the  right  remaynes  in 
him  and  in  his  covent.  And  a  master  of  an  hospitall  may  have  a  writ 
of  right  because  the  right  reniaineth  in  hini  and  in  his  confreres,  (^o. 
And  so  of  other  like  cases  (et  sic  de  aliis  §  casibus  consimilibus  ||).  But 
a  parson  or  vicar  cannot  have  a  writ  of  right,  S^c. 

'' pARCELL  of  7u's  glehe,  &€."     In  whom  the  fee 

simple  of  the  0^  glebe  is,  is  a  question  in  our  r341.  "] 
[a]  8  H.  6.  24.  bookes.  [a]  Some  hold  that  it  is  in  the  patron ;  but  L  3"  J 
12  H.  8.  8.  that  cannot  be  for  two  reasons.     First,  for  that  in  the 

beginning  the  land  was  given  to  the  parson  and  his  successors, 

Vide  Registr.      and  the  patron  is  no  successor.   Secondly,  the  words  of  the  writ  of 

.-.  '^'  1,^    "    '    iuris  utrinn  be,  si  sit  libera  eleemoslna  ecclesias  de  D.  and  not  of 
tit.  iiiscnange.      •^  '  iiiii  \       i>        •        i     •     •       ^ 

12  H.  8,  9.  the  patron.     Some  others  doe  hold  that  the  tee  simple  is  m  the 

(E.  N.  B.  48,  patr(m  and  ordinary;  but  this  cannot  be,  for  the  causes  above- 

F  N  B  19  L  '^'^'*"' '  '^"'^  therefore,  of  necessitie,  the  fee  simple  is  in  abeyance, 

(Dyer,  71.  a.  *  ^s  Litdeton  saith.     And  this  was  provided  by  tlie  providence 

2  Roll.  Abr.  and  wisdome  of  the  law ;  for  that  the  parson  and  vicar  have 
'  curam 

^  et — ne,  L.  and  31.  and  JRoh.  right,  for  that  the  right  remaynes  In 

f  tenements  de  droit  de  son  esglise,     him,  not  in  L.  and  M.  or  Roh. 

pur  ceo  que  le  droit  est  en  son  chapi-         §  in  added  in  L.  and  M.  and  Roh. 

ter,  et  le — not  in  L.  and  M.  or  Roh.  \\  (&c.  added  in  L.  and  M.  and  Ruh. 

I  And  an  obbof  may  have  a  lorit  of 

(A)  The  reader's  attention  should  here  he  directed  to  the  French  loords  introdiieed  in  the 
latter  part  of  Sect.  644,  %cith  respect  to  the  various  readings  of  the  original  French.  See 
also  )tote  B.  infra. 

(B)  Here,  instead  of  "et,"  the  edition  of  Littleton  hy  Lettou  and  Machlinia  and  the 
Rohan  edition,  have  the  word  '' ne."  See  the  readinij  ahore  under  ^.  The  substitution  of 
the  leord  "ne"for  "  et"  materially  alters  the  meaning  of  the  concluding  part  of  the  sen- 
tence, and  appears  to  be  requisite  to  the  true  sense  of  the  text.  For,  in  lohat  other  person 
does  the  fee  simple  abide  if  it  is  not  in  the  parson?  Lord  Coke,  in  his  Comment  on  Sec- 
tions 644,  645,  gives  two  reasons  against  the  opinion  that  the  fee  simple  of  the  glehe  is  in 
the  patron,  or  in  the  patron  and  ordinary;  and  then  concludes  in  these  words /'' and 
therefore,  of  necessitie,  the  fee  simple  is  in  abeyance,  as  Littleton  saith."  Consequently 
lord  Coke  maybe  supposed  to  have  understood  Littleton  in  the  sense  indicated  by  the  Rohan 
edition,  which  was  the  edition  preferred  by  lord  Coke.  See  Mr.  Hargrave's  first  Address 
to  the  public  at  the  beginning  of  the  work. 


L.  3.  C.  11.  S.  645.    Of  Discontinuance.    [341.  a.  341.  b. 

curam  anlmarum,  and  were  bound  to  celebrate  divine  service, 
and  administer  the  sacraments ;  and  therefore  no  act  of  the  pre- 
decessor should  make  a  discontinuance  to  take  away  the  entry 
of  the  successor,  and  to  drive  him  to  a  reall  action,  whereby  he 
should  be  destitute  of  maintenance  in  the  meane  time.  Upon 
consideration  of  all  our  bookes  I  observe  this  diversitie  :  that  a 
parson  or  vicar,  for  the  benefit  of  the  church  and  of  his  successor, 
is  in  some  cases  esteemed  in  law  to  have  a  fee  simple  qualified ; 
but  to  doe  anything  to  the  prejudice  of  his  successor  in  many 
eases,  the  law  adjudgeth  him  to  have  in  effect  but  an  estate  for 
life.  (Jaiisai  ecclesise  jiuhlicis  causis  ceqtiijyarantur  :  and  Summa  Bracton,  lib.  4. 
ratio  est  quce  pro  reh'gione  facit.  And  Ecclesia  fungltnr  vice  g  •,"i*','  ,  <o 
minoris,  meltorem  facere  potest  conditionem  suam,  deteriorem 
neqnaqnam. 

As  a  parson,  vicar,  archdeacon,  prebend,  chantery  priest,  and  F-N.  B.  55.  D. 
the  like,  may  have  an  action  of  waste,  and  in  the  writ  it  shall  ^q  ^^  ,.' -  " 
be  said,  ad  exhceredationem  ecclesice,  &c.  ipsiiis  B.  or  jiracbeiuise 
ijisins  A. 

And  the  parson,  &c.  that  maketh  a  lease  for  life,  shall  F.  N.  B.  49.  L. 

[34:1. "I  have  a  cnnsimi/i  casu  during  0^  the  life  of  the  lessee,  ^^-  ^-  r'^'-  ^;  •^• 
b.     J  andawrit  of  entrie  arZcom??i««e;?i^r^e7)i  after  hisdeath,  Temps  e.  3. 

or  a  writ  ad  termivum  qui  prseteriit,  or  a  quod  per-  Juris  utruui,  14 
mittat  in  the  debt,  and  none  can   maintainc  any  of  these  writs,  ?/.  I'*/''  ^' 
but  a  tenant  in  fee  simple  or  fee  tayle.  p  j^  3  50, 

30  E  3.  26.     21  E.  3.  11.  tit.  Entrie,  10.     F.  N.  B.  206.  F.    Registr.  237.      4  E.  4.  2. 
8  E.  3.  tit.  Eiitrie,  3.     7  H.  3.  54,  65.     (Ant.  67.  a.) 

And  a  parson,  &c.  may  receive  homage  (A),  which  tenant  for 
life  cannot  doe.      l^cmps  E.  1.     Incumbent,  19. 

[cj  Likewise  a  parson,  &c.  shall  have  a  writ  of  mesne,  and  a  W  F.  N.  B.  49. 
contra  formam  feoff amtnti.  ^'  ^^•^• 

But  a  parson  cannot  make  a  discontinuance,  as  Littleton  \\Qxe 
tcacheth ;  for  that  should  be  to  the  prejudice  of  his  successor  to 
take  away  his  entrie,  and  to  drive  him  to  a  reall  action. 

Also  if  a  parson,  &e.  make  a  lease  for  yeares,  reserving  a  rent  (1  Roll.  Abr. 
and  dieth,  the  lease  is  determined  by  his  death  ;  as  if  tenant  for  476.  479.  4ss. 
life  had  made  a  lease,  no  acceptance  of  the  rent  by  the  successor  5  Rep'^gi    ' 
can  make  it  good.      Also  in  a  reall  action,  a  parson,  vicar,  arch-  2  Roll.  Abr.  63. 
deacon,  prebend,  &c.  shall  have  aid  of  the  patron  and  ordinarie,  ■'•^^•^) 
as  tenant  for  life  shall  have.     So  as  it  is  evident,  that  to  many  ^j^  ^j^'  ^^ 
purposes  a  parson   hath   but  in  effect  an  estate  for  life,  and  to  25  E.  3.  54. 
many  a  qualified  fee  simple,  but  the  entire  fee  and  right  is  not  in  8  E.  3. 45. 
him  :  and  that  is  the  reason  that  he  cannot  discontinue  the  fee  \}\^'^a' 
simple  that  he  hath  not,  nor  ever  had ;  for,  as  it  hath  beene  said,  e  e.  3.  45! 
Oninis jyi'ivatio ptrasupponit  habitum.    And  for  the  same  cause  he  43  A??.  Pi.  13. 
cannot  have  a  writ  of  right  right,  nor  a  writ  of  right  in  its  nature  j  ^p, ^'  5^0 1^"' 
as  a  writ  of  right  sur  disclaimer  of  customes  and  services,  ne 
injusth  vexes,  rationabilibus  divisis,  quo  Jure,  and  the  like. 

But  here  it  appcareth  by  Littleton,  that  .such  bodies  politike  (2  Cro.  200. 
or  corporate  as  have  a  sole  seisin,  and  may  have  a  writ  of  right,  Ant.^325.  i). 
for  that  the  fee  and  right  is  in  them  (albeit  they  cannot  absolutely  pj|^  '27'  271°')* 
convey  away  their  lands,  &c.  without  assent  of  others),  may 
make  a  discontinuance  ;  as  a  bishop,  an  abbot,  a  deane,  a  master 
of  an  hospitall,  and  the  like.     But  this  is  to  bee  understood  whore 

a  deane 

(A)  VicL  ante  67.  a.  contra  ;  and  Mr.  Harjraves'a  note  1,  there. 


3^1.  b.  312.  a.]  Of  Discontinuance.  L.  3.  C.  11.  Sect.  645. 

a  deane  or  master  of  an  liospitall,  &c.  are  solely  seised  of  dis- 
tinct possessions :  for  if  the  bodie  that  is  seised  be  aggregate  of 
many,  as  the  deane  and  chapiter,  master  and  confreres,  &c.  then 
the  feoffment  of  the  deane  or  master  is  so  farre  from  a  discon- 
tinuance as  it  is  a  disseisin. 

And  these  that  have  the  fee  and  right  in  them  shall  not  have 
aid  in  respect  of  their  high  and  large  estate,  albeit  any  of  them 
be  presentable :  but  a  deane  that  is  collative  shall  have  aid  of 
the  king. 

And  it  is  to  be  observed,  that  the  remedie  is  ever  agreeable  to 
the  right :  and  therefore  the  bishop,  deane,  master  of  an  hospi- 
tall,  that  hath  college  and  common  scale,  or  the  like,  shall  have 
a  writ  of  right  right,  which  is  the  highest  remedie,  for  that  they 
have  the  highest  estate. 

B^'  Here  Littleton  citeth  the  booke  case,  31ich. 
2  H.  4.  as  an  authoritie  whereupon  he  groundeth  his  ["34:9.1 
opinion.     And  it  is  to  be  observed,  that  the  yeares  of  ^l     ^-     J 
H.  4.  were  published  before  Littleton  did  write. 

But  at  this  day,  the  bishop,  deane,  master  of  an  hospitall,  or 
the  like,  that  have  the  fee  and  right  in  them,  as  hath  beene  said, 
cannot  discontinue;  neither  can  they  or  any  parson,  vicar,  arch- 
deacon, prebend,  or  any  other  having  any  ecclesiasticall  living, 
with  assent  of  deane  and  chapiter,  patron  and  ordinary,  or  tl.e 
consent  of  any  others,  make  any  lease,  gift,  grant  or  convey- 
ance, estate,  charge  or  incumbrance  to  biude  his  successor  other 
than  for  terme  of  one  and  twcntie  yeares,  or  three  lives  in  pos- 
session, whereupon  the  accustomed  rent  or  more  shall  be  reserved. 
These  be  excellent  lawes,  and  have  beene  well  expounded  for  the 
maintenance  of  religion  and  the  good  of  God's  church ;  for 
otherwise  it  is  to  bee  feared  that  holy  church  would  lose  more 
than  it  would  gaine  in  these  dayes. 

But  where  Littleton,  in  this  and  other  Sections,  makes  mention 
of  masters  of  hospitals,  the  reader  must  know,  that  since  Littldon 
wrote,  there  hath  beene  a  great  alteration  made  by  divers  acts  of 
parliament  concerning  hospitals; 

"  MaUer  of  an  liospitall."  These  points  concerning  hospitals 
were  resolved  [d]  by  the  justices. 

First,  that  no  hospitall  was  given  to  the  crowne  by  the  statute 
of  27  H.  8.  nor  any  hospitall  is  within  the  statute  of  31  //.  8.  of 
monasteries,  but  only  religious  and  ecclesiasticall  hospitals,  and 
that  no  lay  hospitall  was  within  those  statutes. 

Secondly,  if  upon  the  foundation  of  any  lay  hospitall,  or  after 
it  was  ordained,  that  one  or  divers  priests  should  be  maintained 
within  the  hospitall  to  celebrate  divine  service  to  the  poore,  and 
to  pray  for  the  soule  of  the  founder,  and  all  christian  soules,  or 
the  like ;  and  that  the  poore  of  such  hospitall  should  make  the 
like  orisons,  yet  such  an  hospital  is  not  within  the  said  statutes ; 
for  the  hospitall  is  lay,  and  not  religious ;  and  all  or  the  most 
part  of  antient  lay  hospitals  were  founded  or  ordained  after  the 
like  sort ;  and  the  makers  of  those  statutes  never  intended  to 
overthrow  workes  of  charitie,  but  to  take  away  the  abuse. 

Thirdly,  that  no  hospitall  was  given  to  the  king  by  the  statute 
of  37  H.  8.  but  in  two  cases,  where  the  donors,  founders  or 
patrons,  &c.  had  entered  and  expulsed  the  priests,  wardens,  &c. 
betweene  the  fourth  day  of  Februarie,  Anno  11  H.  8.  and  the 
five  and  twentieth  of  December,  Anno  37  H.  8.  or  where  king 
Henri/  the  eighth,  by  commission  according  to  that  act,  should 

enter 


44  E.  .3.  n. 

11  H.  4.  68. 
9  E.  4. 16. 
i:;  E.  3.  7. 

6  E.  3.  11. 

5  E.  2.  Aid,  167. 

12  H.  4.  11. 

32  E.  3.  Aid.  39. 
3S  E.  3.  19. 
14  E.  3. 
Juris  utrum,  4. 


Vide  Sect.  527. 
593,  &c. 
1  Eliz.  c.  IS. 
13  Eliz.  c.  10. 
1  Jacobi,  cap.  3. 


Lib.  1  fol.  46. 
Lib.  4.  ful.  76. 
&  20.  Lib.  5. 
fol.  9  &  14. 
Lib.  6.  fol.  37. 
Lib.  7.  fol.  S. 
Lib.  11.  fol.  67. 
37  H.  8. 

31  H.  8. 

32  H.  8. 
37  H.  8. 

1  E.  6,  <fcc. 

[f7]Pasc.24Eliz. 
the  Lord 
Cheneye's  case. 
Lib.  2.  fo.  48,  49. 
Evesquede  Can- 
terburie's  case. 
(2  Sid.  48.) 


Lib.  1.  f.  24. 
Porter's  case. 


L.  3.  C.  11.  Sect.  6iij.  Of  Discontinuance.  [312.  a.  342.  b. 

enter  and  seise  the  same ;  but  that  determined  by  the  death  of 
that  king. 

Fourthly,   that  the   statute  of  1   E.  Q,  extended  not   to  any  Porter's  case, 
hospitall  whatsoever,  either  hiy  or  religious,  as  by  the    same  Lib^lt^'ni  113 
appeareth,  114.  116,  in 

And  I  was  of  counsell  with   the   lord   Cheney  in   this  case,  Lambert's  case, 
which,  seeing  it  may  doe  good  for  maintenance   of  charitable      l^^^^^^^^'f,"^' 
uses,  I  thought  good  summarily  to  report  it.       To  this  I  will  (s  Rep.  131.  a.) 
adde,  Punis  pauperum  vita  p)o.uperum  ;  qui  defraudat  eos  vir 
sanguinis  est. 

Nota,  Of  hospitals,  some  are  corporations  aggregate  of  many; 
as  of  master  or  warden,  &c.  and  his  confreres  :  some,  where  the 
master  or  warden  hath  only  the  estate  of  inheritance  in  him,  and 
the  brethren  or  sisters  power  to  consent,  having  college  and  com- 
mon scale :  some,  where  the  master  or  warden  hath  the  state  in 
him,  but  hath  no  college  and  common  scale ;  and  such  a  master 
or  warden  shall  have  a  Juris  utriim  :  and  of  these  hospitals  some  utrum''*4. 
bee  eligible,  some  donative,  and  some  presentable. 


14  E.  3.     Juris 


Sect.    Q^Q.  (F.KB.48.) 

'DUT  the  highest  writ  that  they  can  have  is  the  writ  0/ juris  atrum, 

'    which  is  a  great  proof e  that  the  right  of  fee  is  not  in  the^n,  nor  in  any 

others,  ^c.     But  the  right  of  the  fee  simple  is  in  aheiance,  that  is  to  say, 

that  it  is  only  in  the  remembrance,  intendment  and  consideration 

r343.~l  of  the  laiv,*  i^c.forit  seemeth  to  me,^^^that  such  a  thing  t  and 

|_     b.     J  such  a  right  ivhich  is  said  in  divers  bookes  to  be  in  abeyance, 

is  §  asmuch  to  say  in  Latine  (scilicet),  Talis  res,  vel  tale  rectum, 

quae  vel  quod  non  est  in   homine  adtunc  superstite,  sed  tantummodo 

est,  et  consistit  in  consideratione  et  intelligentia  legis,  et  quod  alii 

dixerunt  talem  rem  aut  tale  rectum  fore  in  nubibus.     |  But  I  suppose 

that  they  meane  by  these  ivorcls  (in  nubibus,  &c.),  as  I  have  said  before^.. 

"  TN  aheiance."     (1)  That  is,  in  expectation,  of  the  French  24  E.  3.  63. 
word  bayer,  to  expect.     For  when  a  parson  dieth,  we  say  ^^^  g?^   g^J' 

Vide  Sect.  1.     (Hob.  338.     Aut.  263.  b.     2  Roll.  339.     Post.  335.  a. '  1  Rep.  6*6.) 

that 

*  &c.  not  in  L.  and  M.  or  Roh.  these  words  (in  nubibus,  &c.)  not  in 

f  and — in,  L.  and  M.  and  Roh.  L.  and  M.  or  Roh. 

§  &c.  added  in  L.  and  M.  and  Roh.  j^  dhc.  added   in   L.    and  M.   and 

J  But  I  suppose  that  they  meane  hy  Rob. 

(1)  In  the  course  of  these  notes,  frequent  mention  has  been  made  of  the 
necessity  which  there  was  at  the  old  law,  that  there  should  always  be  an  imme- 
diate tenant  of  the  freehold,  and  of  the  reasons  on  which  this  necessity  was 
grounded ;  but  these  reasons  did  not  apply,  in  the  same  degree,  against  the 
suspense  of  the  inheritance.  Hence,  though  for  the  reasons  before  mentioned,  it 
was  an  established  maxim,  that  the  freehold  never  could  be  in  suspense,  or,  as 
it  is  generally  called,  in  abeyance,  it  was  admitted  that  the  inheritance  might. 
But  this  suspence  or  abeyance  of  the  inheritance  could  not  but  be  considered 
•with  a  very  jealous  eye ;  for  though  fiefs,  in  their  original  constitution,  were  not 
hereditary;  still,  when  they  had  once  become  hereditary,  the  consequences  of 

their 


342.  b.]         Of  Discontinuance.     L.  3.  C.  11.  Sect.  646. 

that  the  freehold  is  in  abeyance,  because  a  successor  is  in 
expectation  to  take  it;  and  here  note  the  necessity  of  the  true 
interpretation  of  words. 

If 


their  becoming  such  were  so  numerous,  and  affected  materially  so  many  other 
parts  of  the  feudal  system  of  real  property,  that,  though  it  was  always  admitted 
that  the  inheritance  might  be  suspended,  it  was  agreed,  that  the  suspense  of  it 
should  be  discountenauced  and  discouraged  as  much  as  possible,  and  allowed 
upon  none  but  the  most  pressing  and  urgent  occasions.  The  chief  reasons 
of  the  aversion  of  the  old  law  to  the  suspension  of  the  inheritance  are  set  forth 
in  two  late  masterly  and  profound  publications,  sir  William  Blackstoue's 
Aro^ument  on  the  case  of  Perryn  and  Blake,  and  3Ir.  Hargravo's  Observations 
on  the  Rule  in  Shelley's  case. — To  these  reasons,  the  modern  law  has  added 
her  discouragement  of  every  contrivance  which  tends  to  render  property  un- 
alienable beyond  the  limits  settled  for  its  suspense ;  it  being  clear,  that  no 
restraint  upon  the  alienation  of  property  would  be  more  efiectual  than  the 
admission  of  a  suspense  of  the  inheritance. — The  same  principles  have,  in 
some  degree,  give  rise  to  the  well-known  rule  of  law,  that  a  preceding 
estate  of  freehold  is  indispensably  necessary  for  the  snpport  of  a  contingent 
remainder;  and  they  influence,  in  some  degree,  the  doctrines  respecting  the 
deitrii.dioii  of  contingent  remainders.  Mr.  Fearne's  excellent  Essay  on  these 
subjects  makes  any  farther  investigation  of  them  here  quite  unnecessary;  but 
perhaps  the  reader  will  not  be  displeased  with  the  following  short  discussion 
of  a  subject,  intimately  connected  with  them  : — the  mqiension  and  extinction 
of  powers,  deriving  their  effect  from  the  statute  of  uses,  or  the  statute  of 
wills. 

I.  A  power  may  he  defined  a  right  reserved  hy  a  person  to  himself,  or  given 
to  him  by  another,  to  devest  land  from  those  on  vihom  it  is  settled,  by  the  instru- 
ment containing  the  power,  and  to  vest  it  in  others. — When  it  may  be  exercised 
indiscriminately  in  favour  of  any  object,  the  party  has  the  ctmiplete  dominion 
of  the  land;  such  a  power  may  therefore  be  termed  a  poicer  of  oicnershij)  : 
when  the  objects,  in  whose  favour  it  may  be  exercised  are  conliued,  it  may 
be  termed  a  limited  j^oicer,  and  in  most  cases,  partakes  of  the  nature  of  a 
trust,  delegated  to  the  party  to  be  exercised,  more  or  less,  at  his  discretien, 
for  their  benefit,  and  is  therefore  a  power  charged  with  a  trust,  more  or  less 
discretionary.  A  power  to  appoint  land  in  settlement,  or  any  proportion  of  it, 
or  to  charge  it  with  the  payment  of  a  given  sum  to  any  person,  is  a  power  of 
ownership;  a  power  of  jointuring,  and  a  power  to  appoint  land  to  or  among 
any  description  of  persons,  as  the  party's  own  children,  or  the  children  of 
another,  or  to  charge  it  with  the  payment  of  a  sum  of  money  to  such  chil- 
dren, is  a  limited  power,  and  a  species  of  trust,  exorciseable,  more  or  less,  at 
the  party's  discretion,  for  their  benefit;  and  therefore  a  power  charged  with 
a  trust. 

II.  Powers  over  real  property, — (to  which  this  annotation  is  altogether 
confined), — may  be  distinguished  into  poivers  collateral,  and  powers  relating  to 
the  estate  of  the  donee  of  the  power  in  the  land.  A  collateral  poicer  is,  where  a 
power  is  given  to  a  person  who  has  no  estate  or  interest  in  the  land.  8uch 
is  the  power  of  sale  given  to  persons  who  have  neither  an  estate  for  pre- 
serving contingent  remainders,  nor  any  other  estate  or  interest  in  the  laud. 
Powers  relating  to  the  estate  of  the  donee  of  the  poicer  in  the  land  may  be 
subdivided  mio  powers  appendant  to  an  estate,  which  the  donee  of  the  power 
hath  in  the  land,  subject  to  it,  and  powers  in  gross.  A  power  is  said  to  be 
appendant  to  the  estate  of  the  party,  when  the  use  or  estate,  to  be  created 
by  the  power,  takes  effect  in  possession  during  the  continuance  of  an  estate 
which   the   donee    hath    in    pessession   or  remainder,   and   therefore   wholly 

or 


L.  3.  C.  11.  Sect.  646.       Of  Discontinuance.       [342.  b. 

If  tenant pwr  terme  d'auter  vie  dieth,  the  freehold  is  said  to 
be  in  abeyance  untill  the  occupant  entreth.  If  a  man  make  a 
lease  for  life,  the  remainder  to  the  right  heires  of  1.  S.  the  fee 

simple 


or  partially  overreaches  it.  Such  is  the  power  usually  given  in  settlements, 
to  tenants  for  life  to  execute  leases :  such  also  are  the  powers  of  sale  and 
exchange,  usually  given  to  trustees  for  preserving  contingent  remainders. 
Powers  in  gross  are,  when  the  person  to  whom  they  are  given,  hath  an  estate 
in  the  lands,  but  the  estate  to  be  created  under  or  by  virtue  of  the  power, 
is  not  to  take  eifect  till  after,  and  therefore  does  not  overreach  the  estate 
of  the  donee  of  the  power.  Such  is  the  power  of  jointuring  usually  given 
in  settlements.  But  where  a  person  takes  distinct  estates  under  the  same 
settlement,  the  same  power  is  sometimes  a  power  appendant  in  respect  to 
one  estate,  and  a  power  in  gross  in  respect  to  the  other.  Thus,  where  land 
is  limited  to  the  use  of  ^.  for  life;  remainder  to  his  sons  successively  in  tail, 
with  remainder  to  the  heirs  of  his  body,  with  a  power  to  jointure  and  to  create 
a  term  for  securing  the  jointure;  these  powers,  in  respect  to  A.'s  estate  for 
life,  are  powers  in  gross;  and,  in  respect  to  his  remainder  in  tail,  are  powers 
appendant. 

III.  As  to  the  suspense  or  extinffuisJiment  of  powers  collateral  to  the  land, — it 
is  said,  that  the  release,  fine,  feoffment,  or  common  recovery  of  the  donee  of 
such  powers,  will  not  extinguish  or  destroy  them.  See  ante  265.  b.  Albanie's 
case,  1  Rep.  110.  b.  Digges's  case,  1  Rep.  173.  a.  Moore,  605.  The  reason, 
why  a  release  does  not  extinguish  them,  is  shown  to  be  (ante  265.  b.)  1st.  that 
collateral  powers  are  not  in  the  nature  of  rights  or  titles,  and  cannot  therefore, 
from  their  nature,  be  released.  2dly,  That,  where  powers  are  given  or  reserved 
to  any  person,  having  any  estate  or  interest,  either  present  or  future,  in  the 
land,  the  exercise  of  these  powers  is  considered  as  advantageous  to  him ;  and 
there  is  no  reason  why  he  should  not  be  allowed  to  depart  with  or  exclude 
himself  from  the  benefit  of  them  :  but  that,  when  they  are  given  to  strangers, 
they  are  intended  for  the  benefit  of  some  third  person ;  and  therefore  the 
extinction  of  them  is  supposed  to  be  injurious  to  some  person  intended  to  be 
benefited  by  them.  With  respect  to  their  not  being  destroyed  by  feofi'ment, 
fiQe,  or  recovery,  every  man,  it  is  said,  is  estopped  from  claiming  any  estate 
contrary  to  his  own  feofi'ment;  but  if  a  stranger,  with  a  power  of  revocation, 
makes  a  feofi'ment,  levies  a  fine,  or  suffers  a  recovery,  and  afterwards  revokes, 
the  person  claiming  the  estate  under  the  revocation  is  in  immediately  by,  and 
makes  his  title  immediately  from,  the  original  settler  or  devisor,  and  not  by  or 
from  the  feoffor,  conusor,  or  recoveree :  he  is  not  therefore  bound  or  estopped 
by  any  act  of  the  feoff"or,  conusor,  or  recoveree.  Thus,  if  a  person  devised 
that  his  executors  should  sell  his  land,  and  died,  and  his  executors  made  a 
feofi'ment;  it  was  held  that  the  executors  might  sell  against  their  own  feofi'- 
ment, because  the  power  to  sell  was  merely  collateral  to  the  right  to  the  land, 
and  the  purchaser  took  nothing  by  the  feofi'ment. 

IV.  As  to  powers  relating  to  the  estate  of  the  donee  of  the  power  in  the  land. — 
Such  of  those  powers  as  are  in  the  nature  of  powers  ajipendant  to  the  estate, 
may,  it  is  agreed,  be  extinguished  by  the  release,  feofi'ment,  fine,  or  common 
recovery  of  the  donee  of  the  power.  These  powers  also  are  liable  to  be  ex- 
tinguished or  suspended  by  any  of  the  conveyances  which  are  said  not  to 
operate  by  transmutation  of  the  possession,  as  bargains  and  sales,  leases  and 
releases,  and  covenants  to  stand  seised :  for  whoever  has  any  estate  in  the 
land,  may  convey  that  estate  to  another;  and  it  would  be  unjust  that  he  should 
afterwards  be  admitted  to  avoid,  or  to  do  any  thing  in  derogation  from  his 
own  grant. — Any  assurance  of  this  nature,  therefore,  which  carries  with  it  the 

whole 
Vol.  II.— 39 


312.  b.]         Of  Discontinuance.     L.  3.  C.  11.  Sect.  646. 

simple  is  in  abeyance  untill  1.  S.  dieth.  And  so  in  the  case  of 
the  parson,  the  fee  and  right  is  in  abeiance,  that  is,  in  expecta- 
tion, in  remembrance,  entendment,  or  consideration  of  law,  1.  In 

crmsideratione 

whole  of  the  grantor's  estate,  is  a  total  destruction  of  the  powers  appendant  to 
that  estate;  and  by  parity  of  reason,  any  such  assurance  as  carries  with  it 
only  a  part  of  the  estate,  (as  a  term  for  years,  or  an  estate  for  life),  suspends, 
during  the  continuance  of  that  estate,  the  exercise  of  the  power,  or,  at  least, 
the  estate  to  be  raised  by  it;  and  any  such  assurance,  which  induces  only  a 
charge  upon  the  estate,  (as  a  grant  of  a  rent),  necessarily  subjects  the  estate 
created  by  the  power  to  that  charge.  It  should,  however,  be  observed,  that, 
in  cases  where  a  power  is  in  the  nature  of  a  trust,  a  question  may  arise, 
whether  a  release  of  the  power  be  not  a  breach  of  trust,  and,  on  that  account, 
inoperative. 

Y.  As  to  such  of  the  powers  relating  to  the  estate  of  the  donee  of  the  power 
in  the  land  as  are  said  to  \)e ])owcrs  in  gross: — As  the  estates  raised  by  them 
do  not  fiiil  within  the  compass  of  the  estate  to  which  they  are  said  to  relate, 
there  does  not  seem  to  be  any  reason  why  any  alteration  in  that  estate  should 
affect  them.  Henue,  if  tenant  for  life,  with  a  power  to  jointure  an  after-taken 
wife,  conveys  his  life  estate  by  bargain  and  sale,  lease  and  release,  or  covenant 
to  stand  seised,  this  conveyance  will  not  affect  the  power  of  making  a  jointure. 
If  he  even  makes  a  conveyance  in  fee  by  any  of  these  assurances,  as  it  is  not 
their  operation  to  pass  a  greater  estate  than  the  grantor  has  a  right  to  convey, 
the  power  in  gross  is  not  affected  by  it ;  but,  if  he  conveys  by  fine,  feoffment, 
or  recovery,  as  these  assurances  not  only  pass  the  estate  of  the  grantor,  but 
convey  a  tortious  fee,  they  necessarily  disturb  the  whole  inheritance.  They 
therefore  may  operate  in  extinction  of  the  power.  A  power  in  gross  may  also 
be  released  to  any  of  those  in  remainder  : — and  if  the  whole  fee  is  in  the  terre- 
tenant,  subject  to  the  power;  as  where  an  estate  is  limited  to  A.  for  life, 
remainder  to  such  uses  as  he  shall  by  deed  or  will  appoint,  and  in  default  of 
such  appointment  to  A.  in  fee;  there  if  A.  conveys  the  whole  fee  by  lease  and 
release,  his  power  of  appointment,  notwithstanding  it  is  in  the  nature  of  a 
power  in  gross,  is  totally  extinguished.  See  Penne  v.  Peacock  &  ux.  Ca. 
Temp.  Talbot,  41. 

YI.  It  should  be  observed,  that  in  mentioning  above  the  effect  of  a  feoff- 
ment, fine,  or  common  recovery,  the  expression  is,  that  powers  may  be  extin- 
guished by  those  conveyances : — But  it  is  not  intended  to  express,  either  with 
resp)ect  to  p)owcrs  appendant  or p>nu-:ers  in  gross,  that  such  conveyances  necessarily 
and  unavoidahly  extinguish  such  jwwers,  in  all  cases. 

YI.  1.  On  the  contrary,  the  cases  of  Bullock  v.  Thorne,  Moore,  615.  and 
Smith  on  the  demise  of  Eichards  v.  Clyfford,  1  Durn.  and  East,  738.  seem  to 
show,  that  such  conveyances  will  not  have  this  effect,  it'  they  are  accompanied  hy  a 
died,  which  directs  them  to  operate,  as  a  confirmation  of  the  subsisting  uses,  and 
cither  declares  no  other  uses,  or  declares  none  inconsistent  with  such  subsisting 
uses. — As  where  land  is  limited  to  A.  during  his  life,  with  a  limitation  to  trus- 
tees and  their  heirs,  during  his  life,  in  trust  to  preserve  contingent  remainders, 
remainder  to  his  sons  successively  in  tail  male;  and,  for  default  of  such  issue, 
to  the  right  heirs  of  A. ;  and  powers  of  leasing,  jointuring  and  charging  with 
portions,  are  given  to  A.,  and  powers  of  sale  and  exchange  are  given  to  trus- 
tees to  be  exercised  with  ^.'s  consent; — at  a  subsequent  period,  A.  covenants  to 
levy  a  fine,  and  directs  it  to  operate,  in  the  first  place,  for  confirming  the  uses 
antecedent  to  the  limitation  of  the  reversion,  and  the  powers  collateral  or 
relating  to  those  estates;  and,  in  the  next  place,  for  conveying  and  limiting 
the  reversion  to  uses,  which  he  proceeds  to  declare  of  the  same  : — it  is  appre- 
hended 


L.  3.  C.  11.  Sect.  646.       Of  Discontinuance.         [342.  b. 

consideratione  sive  intellvjentia  Icgis,  because  it  is  not  in  any  man 
then  living;  and  the  right  that  is  in  abeiance  is  said  to  be  in  mi- 
hibus,  in  the  clouds,  and  therein  hath  a  qualitie  of  fame  whereof 
the  poet  speaketh  : 

Ingrediturque  solo,  et  caput  inter  nuhila  condit.  Virg.4.JEneid. 

Sect. 

bended  that  the  fine  will  operate  neither  to  divest  the  uses,  nor  to  destroy  the 
pi)wers,  nor  to  forfeit  the  estate  of  the  tenant  for  life,  but,  as  a  confirmatioa  and 
further  assurance  of  those  uses,  estates  and  powers. 

VI.  2.  And  the  cases  of  the  Earl  of  Leicester,  1  Vent.  278.  and  Hcring  v. 
Brown,  1  Vent.  o68.  371.  appear  to  show,  that,  where  a  tenant  for  life  has  a 
pjwer  of  appointment;  and,  by  a  deed  executed  in  the  manner  prescribed  for 
the  exercise  of  the  power,  covenants  to  Icvjj  a  fineand  directs  it  to  operate  to  uses 
VKirranted  by  the  powers,  the  tine  will  not  destroy  the  power,  but  operate,  in 
concurrence  with  the  deed,  as  an  exercise  of  it.  Hence,  if  tenant  for  life  h*as 
a  power  of  jointuring  by  deed  executed  by  him  in  the  presence  of  and  attested 
by  two  or  more  witnesses;  and  by  deed,  so  executed  and  attested,  covenants  to 
levy  a  fine,  and  directs  it  to  operate  as  a  confirmation  of  his  life  estate,  and 
after  his  decease  to  the  use,  intent  and  purpose  that  B.  his  intended  wife,  may, 
if  she  survive  him,  receive  a  jointure  rent-charge  during  her  life,  and,  subject 
to  the  same,  to  the  subsisting  uses  ;  and  the  fine  is  levied  accordingly  : — it  is 
apprehended,  that  the  fine,  thus  directed  in  its  operation,  will  be  alegal  exer- 
cise of  the  power,  and  operate  at  the  same  time,  as  a  further  assurance  of  the 
uses  subsisting  or  capable  of  taking  effect  under  the  deed  creating  the  power. 

VI.  3.  It  may  further  be  generally  asserted,  that,  in  all  cases  where  a  fine  or 
common  recovery  can  bo  so  connected  with  a  prior  deed,  as  to  make  with  it 
one  entire  assurance,  the  fine  or  recovery  will  operate  not  to  expend  or  extin- 
guish but  to  strengthen  and  establish  the  poicers  contained  in  that  deed.  As, 
where  a  tenant  in  tail,  supposing  himself  seised  in  fee,  conveys  the  land  to 
several  uses  in  strict  settlement,  and  limits  powers  of  all  or  any  of  the  de- 
scriptions which  have  been  mentioned ;  and  afterwards,  on  discovering  the 
mistake,  levies  a  fine  or  suffers  a  recovery,  and  directs  it  to  operate  to  the  uses 
of  the  settlement,  a  court  would  cpnsider  the  settlement,  the  fine  or  recovery, 
and  the  deed  declaring  the  uses,  as  forming  one  assurance,  and  that  the  powers 
were  therefore  established  by  the  fine  or  recovery. 

VII.  It  should  also  be  observed,  that  an//  contract  entered  into  by  the  donee 
of  a  power,  with  which  an  exercise  of  the  pxmcr  ivonld  he  inconsistent, prevents, 
at  least  in-  equity,  a  valid  exercise  of  it.  Thus,  where  a  tenant  for  life  has  a 
power  to  charge  an  estate  with  a  sum  of  money,  for  his  own  benefit,  and  to 
create  a  term  for  securing  it,  and  covenants  for  a  valuable  consideration,  not  to 
exercise  these  powers,  a  subsequent  exercise  of  them  would  be  a  breach  of  hit, 
contract,  and  therefore  void  in  equity. 

VIII.  It  even  maybe  thought  doubtful  whether  it  wouldnot  be  void  also  at  law. 
This  leads  to  the  discussion  of  a  point  of  great  importance,  but  which  doth 

not  appear  to  the  writer  to  have  received  the  attention  it  deserves, — whether 
in  conveyances  which  derive  their  effect  from  the  statute  of  uses,  the  use  is 
executed  by  the  statute  in  any  case,  in  which  the  party  is  not  entitled  bond 
fide  to  the  trust ;  or  in  other  words,  whether  there  can  be  a  cestui  que  use, 
under  the  statute,  in  any  case,  where  the  party  to  whom  the  use  is  limited, 
would  not  have  been  cestui  que  trust,  while  uses  remained  in  their  fiduciary 
state,  at  common  law.  To  bring  this  suggestion  to  the  test,  let  it  be  supposcil 
that  lands  are  conveyed  by  A.  to  /.  S.  and  his  heirs,  to  the  use  of  A.  for  life, 
remainder  to  7.  /S.  and  his  heirs  during  the  life  of  A.  in  trust  to  preserve  the 
contingent  remainders;  and  after  the  decease  of  J.  to  the  use  of  the  sons  of  A. 
successively  in  tail  male ;  and  for  default  of  such  issue,  to  the  right  heirs  of 
A.;  and  that  before  the  birth  of  any  son  to  A.,  A.  and  /.   S.  for  a  valuable 

consido-ation, 


342.  b.]       Of  Discontinuance.       L.  3.  C.  11.  Sect.  646. 

consideration,  convey  the  lands,  by  bargain  and  sale  inrolled,  to  C.  and  hig 
heirs — C.  having  notice  of  the  settlement.  It  is  generally  considered  that,  in 
such  a  case,  the  bargain  and  sale  would  operate  as  a  valid  conveyance  of  the 
legal  fee  of  the  bnd  to  CL ;  and  that  the  only  remedy  of  the  issue  male  of  A. 
would  be  a  bill  in  equity,  upon  which  the  court  would  direct  a  reconveyance. 
Now,  if,  previously  to  the  statute  of  uses,  A.  and  /.  >S'.  had,  in  the  proposed 
case,  conveyed  the  lands  by  bargain  and  sale  to  C.  and  his  heirs,  the  bargain 
and  sale  would  have  been,  in  respect  to  the  sons  of  A.  wholly  inoperative.  For, 
before  the  statute,  the  eifect  of  a  bargain  and  sale  was  only  to  transfer  the  trust, 
by  substituting  one  cestui  que  trust  for  another.  But,  in  the  case  which  has 
been  mentioned,  /.  S.  notwithstanding  the  conveyance  to  C.  would  have  con- 
tinued trustee  for  the  sons  of  A.  and  accountable  for  the  rents  to  them. 
Now,  the  statute  of  uses  (27  Hen.  8.  c.  10.),  enacted  that,  "when  any  person 
"  should  be  seised  of  land  to  the  use,  confidence,  or  trust  of  any  other  person 
"  or  body  politic,  the  person  or  corporation,  entitled  to  the  use  in  fee  s-imple, 
''fee  tail,  for  life,  or  years,  or  otherwise,  should  from  thenceforth  stand  and 
*'  be  seised  or  possessed  of  the  land,  of  and  in  the  like  estates,  as  they  had 
"  in  the  use,  trust  or  confidence."  It  seems  to  follow,  that,  in  the  proposed 
case,  to  entitle  C.  to  the  benefit  of  the  statute,  and  bring  the  conveyance  to  him 
within  its  operation,  it  must  be  shown  that  1.  S.  was  seised  "to  the  use,  con- 
"  fidence  or  trust  of  6'."  and  that  C.  was  entitled  to  the  "  use,  trust,  or  coiifi- 
"  dence"  of  the  land.  But  the  sons  of  A.  were  entitled  to  the  benefit  of  the 
use,  trust  and  confidence  ;  and  G.  had  no  title  to  them  against  the  sons  of  A. 
It  may  be  thought  to  follow,  that,  in  the  case  which  had  been  proposed,  the 
statute  of  uses  would  not  operate,  and  the  conveyance  of  A.  and  /.  >S'.  to  6'. 
would  be  equally  void  at  law,  as  it  is  allowed  to  be  void  in  equity,  with  re- 
spect to  the  issue  male  of  ^.  If  this  doctrine  be  founded,  it  must  be  attended 
with  extensive  consequences. 

IX.  This  leads  to  the  consideration  of  the  effect,  which  conveyances  hy  the 
person,  seised  for  the  time  of  the  land,  have  on  collateral  powers  vested  in  other 
persons. 

IX.  1.  As,  where  a  tenant  for  life  under  a  settlement  containing  the  usual 
powers  of  sale,  executes  a  feoff'mcnt,  levies  a  fine,  or  suffers  a  recovery.  A 
necessary  effect  of  such  a  conveyance  is,  to  divest  the  whole  fee,  and  vest  it 
in  the  feoffee,  conusee  or  recoveror.  This,  therefore,  makes  it  necessary  to 
consider,  what  from  that  circumstance,  independently  of  any  other,  its  effect 
would  be  in  suspending  or  extinguishing  the  power  of  sale.  To  arrive  at  a 
conclusion  on  this  point,  it  might  be  found  necessary  to  ascertain,  with  pre- 
cision, the  nature  of  the  estate  of  trustees  for  preserving  contingent  remainders, 
— particularly,  whether  it  vests  in  them  in  possession  in  the  instant  of  the  com- 
mission of  the  act  of  forfeiture  by  the  tenant  for  life,  or  waits  for  its  so  vesting  in 
them  in  possession,  till  the  trustees  determine  the  estate  conveyed  by  the  tenant 
for  life,  by  their  entrj.  This  case  sometimes  occurs  in  practice; — as,  where  a 
pci-son  considering  himself  seised  in  fee  simple,  conveys  to  the  use  of  himself  for 
life,  with  a  limitation  to  trustees  and  their  heirs  during  his  life  for  preserving  con- 
tingent remainders  ;  remainder  to  the  use  of  his  sons  successively  in  tail,  and  for 
default  of  such  issue  to  the  use  of  his  own  right  heirs.  Having  issue  an  only 
son,  they  levy  a  fine  to  the  use  of  a  purchaser.  It  is  afterwards  discovered 
that,  at  the  time  of  the  execution  of  the  settlement,  the  father  was  tenant  in  tail 
with  remainders  over  :  and  the  father  and  son  join  in  suffering  a  common  reco- 
very, to  the  use  of  a  purchaser  in  fee.  It  might  be  contended  in  such  a  case, 
that,  if  the  legal  freehold  vested  in  the  trustees,  immediately  on  the  levying  of 
the  fine,  the  recovery  suffered  by  the  father  and  son,  would  be  void,  for  want 
of  a  tenant  to  the  praecipe ;  but  that  the  recovery  would  not  be  subject  to  this 
objection,  if,  to  vest  the  legal  freehold  in  the  trustees,  their  previous  entry  was 
necessary. — The  writer  is  not  apprised  of  any  judicial  authority,  which  leads  to 
a  certain  conclusion  in  this  case. — In  respect  to  the  effect  of  a  fine,  feoffment 
or  recovery  of  a  tenant  for  life,  on  a  power  vested  in  a  third  person,  he  thinks 

there 


L.  3.  C.  11.  Sect.  647.    Of  Discontinuance.        [342.  b. 

Sect.  647. 

j^LSO,  if  a  parson  of  a  church  dieth,  noiv  the  freehold  of  the  glehe  of 
the  parsonage  is  in  none  during  the  time  that  the  parsonage  is 

voide, 

there  is  strong  ground  to  contend,  that  if  the  estate  waits  for  its  vesting  in  the 
trustees,  for  their  entry,  the  power  is  suspended  by  the  fenfiuieut,  fine  or  re- 
covery, till  it  is  restored  by  the  entry  of  the  trustees;  but  that  it  is  unaffected 
by  the  feoffment,  fine  or  recovery,  if  the  estate  vests  in  the  trustees  immediately 
on  the  commission  of  the  act  of  forfeiture. 

IX.  2.  The  effect  of  feoffments,  fines  or  recoveries  of  tenants  in  tail,  on 
jyowers  vested  in  other  persons,  depends  on  other  principles ;  and  leads  to  dis- 
cussions too  numerous  and  extensive  for  the  present  annotation. — It  shall  be 
confined  to  a  case,  which  frequently  occurs  in  practice. — Lauds  are  conveyed  to 
the  use  of  ^4.  for  life,  with  a  limitation  to  trustees  and  their  heirs  during  the  life 
of  A.,  in  trust  to  preserve  contingent  remainders;  with  remainders  to  his  sons 
successively  in  tail; — and  powers  are  limited  to  A.  either  to  appoint  the  land  to 
or  among  his  children,  or  to  charge  it  with  portions; — or  other  powers  are 
limited  to  him,  enabling  him  to  create  uses  which  are  to  take  effect  in  possession 
after  his  decease.  In  these  cases,  it  frequently  becomes  necessary  to  consider, 
whether,  if  previously  to  the  execution  of  these  powers,  .1.  and  his  eldest 
or  only  son,  join  in  suffering  a  common  recovery,  it  will  have  the  effect  of  de- 
stroying the  power.  Now  it  is  the  known  effect  of  a  common  recovery  by  a  tenant 
in  tail  to  bar,  not  only  estates  limited  in  remainderafter  the  estate  tail,  butall  uses 
which  may  take  effect,  and  divest  the  lands  either  wholly  or  partially  from  him, 
during  the  continuance  of  his  estate.  If,  therefore,  after  the  limitations,  which 
have  been  mentioned,  a  proviso  had  been  inserted,  directing  that,  if  particular 
lands  devolved  to  any  of  the  sons,  the  settled  lands  should  be  divested  from  him, 
and  devolve  to  others,  there  is  no  doubt  that  a  recovery,  suffered  by  the  tenant 
in  taile,  before  this  event,  would  prevent  the  effect  of  such  a  proviso.  With  great 
deference  to  the  contrary  opinion,  it  appears  to  the  present  writer,  that  this  case 
and  the  case  now  under  consideration  are,  in  respect  to  the  effect  of  the  re- 
covery, perfectly  parallel.  Whether  uses  arise  under  a  limitation,  or  by  the 
exercise  of  a  power,  they  are  equally  springing  or  shifting  uses  if  they  arise  on  a 
deed,  and  executory  uses  if  they  arise  on  a  will.  In  the  proviso,  which  has  been 
suggested,  they  arise  on  an  event,  in  which  the  settler  himself  directs  them  to 
arise;  when  they  arise  under  a  power,  they  take  effect  on  an  event,  on  which 
the  settler  authorises  the  donee  of  the  power  to  direct  their  raising:  but,  in  each 
"ase,  when  the  event  happens,  the  effect  of  the  use  then  springing  up  or  vesting, 
on  the  uses  previously  subsisting  or  capable  of  coming  into  existence,  is  exactly 
the  same: — and  thus,  in  the  view  of  the  present  writer,  both  are  equally  liable  to 
destruction  by  a  recovery. — The  reader  will  observe,  that,  in  the  case  pro- 
pounded, the  uses,  to  be  created  under  the  power,  are  supposed  to  be  limited 
in  such  manner,  that  they  take  effect  (tffer  the  death  of  the  tenant  for  life,  and 
that  the  estate  of  the  tenant  in  taile,  who  suffers  the  recovery,  is  the  next  estate 
of  freehold.  Where  other  estates  of  freehold  are  interposed,  or  where  the  uses 
are  so  limited  that  they  may  take  effect  in  the  lifetime  of  the  precedent  tenant 
for  life,  the  case  is  different,  and  leads  to  different  considerations: — in  the  opi- 
nion of  the  writer,  the  uses  in  this  case,  are  equally  to  be  barred  by  a  common 
recovery,  and  a  deed  properly  prepared  to  give  it  the  operation. 

The  principles  of  the  doctrine  contained  in  this  annotation  may  be  ex- 
tended much  farther  in  argument;  but  it  is  by  no  means  advisable  to  do  it  in 
practice.  On  the  learning  of  powers,  Mr.  Sugden  has  lately  favoured  the  public 
with  a  third  edition  of  his  excellent  treatise  upon  that  subject. — [Note  298.] 


342. b.  343. a.]  Of  Discontinuance.  L. 3.  C.  11.  Sect. 648. 

votde,  but  in  abeiance,  viz.  in  consideration  and  in  the  understanding  of 
the  law,  until  another  be  made  parson  of  the  same  church;  and  imme- 
diately when  another  is  \\  made  j^arson,  the  freehold  in  deed  is  in  him 
as  successor^. 

"  TF  a  parson  of  a  church  dieth,  &c."  So  it  is  of  a  bishop, 
abbot,  deane,   archdeacon,   prebend,   vicar,  and   of  every 

other  sole  corporation  or  body  politike,  presentative,  elective,  or 
Bract,  li.  1.  c.  2.  donative,  which  inheritances  put  in  abeiance  are  by  some  called 
Brit.  f.  249.  hccreditates  Jacentes  ;  and  some  say,  que  le  fee  est  en  balaunce. 


Sect.  648.  [3^3.-1 

ALSO,  some  peradventure  wil  argue  and  say,  that  inasmuch  as  a 
parson  tvitli  the  assent  of  the  patron  and  ordinary,  may  grant  a  rent 
charge  out  of  the  glebe  of  the  parsonage  in  fee,  and  so  charge  the  glebe 
of  the  parsonage  perpetually,  ergo  they  have  a  fee  simp)le,  or  tivo  or  one 
of  them  have  a  fee  simple  at  the  least  (ou  deux  ou  un  de  eux  avoit  fee 
simple  *  al  meins  f).  To  this  may  bee  answered,  that  it  is  a  principle 
in  laiv,  that  of  everie  land  there  is  a  fee  simple,  ^c.  in  some  bodie,  or 
I  otherwise  the  fee  simple  is  in  abeyance  ||||.  Andthere  is  anotlier  principle, 
that  every  land  of  fee  simple  may  be  charged  with  a  rerit  charge  in  fee  by 
one  ivay  or  other.  And  when  such  rent  is  granted  by  the  deed  of  the 
parson,  andthe  patron  andordinarie,  ^c.  in  fee,  none  shall  have  prejudice 
or  losse  by  force  of  such  grant,  but  the  §  grantors  in  their  lives,  and  the 
heires  of  the  patron,  and  the  successors  of  the  ordinarie  after  their  decease. 
And  after  such  charge  if  the  parson  die  (si  le  **  parson  devie),  his  suc- 
cessor cannot  come  to  the  sayd  church  to  be  parson  of  the  same  by  the  law, 
but  by  the  preseritment  of  the  patron,  and  admission  and  institution  of 
the  ordinarie-\-\.  And  for  this  cause  the  successor  ought  to  hold  him- 
selfe  content,  and  agree  to  that  which  his  patron  and  the  ordinarie  have 
lawfully  done  before,  ^c.  But  this  is  no  proof e  that  the  fee  simple,  ^c. 
is  in  the  patron  and  the  ordinarie,  or  in  either  of  them,  ^^c.  But  the 
cause  that  such  graunt  of  rent-chargeXt  is  good,  is,  for  that  they  who 
have  the  interest,  <^c.  in  the  said  church,  viz.  the  patron  according  to 
the  laiv  temporall,  and  the  ordinarie  according  to  the  laio  spiritual,  were 
assenting,  or  parties  to  such  charge,  ^c.  And  this  seemeth  to  be  the  true 
cause  why  such  glebe  may  be  charged  in  perpetuitie,  ^[1  cf-c. 

(Ant.  10.  b.)         "  TT  is  a  principle  in  law,  drc."     Principium,  quod  est  quasi 

priinum  caput,  from  which  many  cases  have  their  originall 

or  beginning,  which  is  so  strong,  as  it  suffereth  no  contradiction; 

and  therefore  it  is  said  in  our  books,  that  ancient  principles  of 

[a]  11  H.  4.  9.      the  law  [a]  ought  not  to  be  disputed,  Contra  negantcm  2>rincij)la 

noil  est  disputundum.     That  which  our  author  here  calleth  a 

Sect.  3  &  90.       principle,  Sect.  3,  &  90,  he  calleth  a  maxime. 

Here 

11  made  not  in  L.  and  M.  or  Rob.  %^  grantors — grantees,  L.  and  M.  and 

1[  &c.  added  in  L.  and  M.  and  Roh,  Rob. 

*  al — an,  L.  and  M.  and  Roh.  **  TparsonnotinL.and 31.  and  Roh. 

f  etc.  added  in  L.  and  M.  and  Roh.  ff  &c.  added  in  L.  and  M.  and  Roh. 

i  otheru-ke  not  in  L.  and  M.  or  Roh.  fl  '^^-  added  in  L.  and  M.  and  Roh. 

Ijjl  t&c.  added  in  L.  and  M.  and  Roh.  "|^  &c.  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  11.  S.  648.    Of  Discontinuance.  [343.  a.  343.  b. 

Here  Littleton  in  answer  to  an  objection  alleagetli  two  prin- 
ciples.    First, 

"That  o/everie  land  there  is  a  fee  simple,  &c."     Tiiis  is^er- 
spicue  verum,  and  needeth  no  explanation.     Secondly, 

"Every  land  of  fee  simple  may  hee  charged  in  fee  hy  one  way  (Larapet's  case, 
or  other}'  Hereby  it  appearetli,  that  albeit  the  right  of  the  fee  l*^  ^^''P-  ^^-  ^•■* 
simple  be  in  abeyance,  yet  it  may  be  charged  by  one  way  or 
another.  And  so  it  may  be  aliened  in  fee,  albeit  the  right  of  the 
fee  be  in  abeyance,  or  in  consideration  of  law.  And  herein  is 
a  diversitie  worthy  the  observation  to  be  made,  that  when  the 
right  of  fee  simple  is  perpetually  by  judgement  of  law  in  abey- 
ance, without  any  expectation  to  come  in  esse,  there  he  that  hath 
the  qualitiod  fee,  concurrent  ibus  hiis  qud&  injure  requiruntur,  may 
charge  or  alien- it,  as  in  the  case  of  parson,  vicar,  prebend,  &c. 
But  where  the  fee  simple  is  in  abeyance,  and  by  possibilitie  may 
every  houre  come  in  esse,  there  the  fee  simple  cannot  be  charged 
untiil  it  commeth  in  es.sY;(l).     As  if  a  lease  for  life  be  made,  (2  Roll.  418, 

the  remainder  to  the  right  heires  of  /.    *S'.  the  fee  419.) 
[343."!    simple  cannot  be  J^="  charged  till  /.   S.  be   dead. 
|_     b.     J    And  so  is  Littleton  to  be  understood,  viz.  that  either 
it  may  be  charged  in  prsesenti,  or  m  futuro. 

"Every  land  of  fee  simple."     And  so  it  is  of  lauds  entailed, 
for  they 'may  be  charged  in  fee  also;  for  the  estate  taile  may  be 
cut  off 'by  fine  or  recovery.     Also  the  estate  taile  may  continue, 
and  yet  tenant  in  taile  may  lawfully  charge  the  land  and  binde  44  e_  3.  21,  22. 
the  issue  in  taile.     As  if  a  disseisor  make  a  gift  in  taile,  and  the  (Plo.  Com.  430.) 
donee  in  consideration  of  a  release  by  the  disseisee  of  all  his 
right  to  the  donee,  granteth  a  rent  charge  to  the  disseisee  and 
his  heires,  proportionable  to  the  value  of  his  right,  this  shall 
binde  the  issue  in  taile.  Vide  Sect.  1,  Bridgewatcr's  case  (A);  Vide  Sect.  1. 
which  lands,  by  the  rule   of  Littleton,  may  be  charged  :  and  ^^^'^^^^^"^^^^^^^  ' 
therefore  if  the  owner  of  those  thirteene  acres  grant  a  rent- 
charge  out  of   those  thirteene    acres    generally,    lying    in    the 
meadow  of  eightie,  without  mentioning  where  they  lie  particu- 
larly ;  there,  as  the  state  in  the  land  removes,  the  charge  shall 
remove  also.    But  since  our  author  wrote,  all  ecclesiasticall  per- 
sons are  disabled  to  charge  in  fee  any  of  their  ecclesiasticall  pos- 
sessions, as  before  hath  beene  spoken  of  at  large. 

"And  when  such  rent  is  granted,  &c."     This  is  an  excellent  J^^jJ^^^  ^J^j 
interpretation  and  limitation  of  the  said  principle,  viz.  that  none  ^0°^  j'^" 
shall  have  prejudice  or  losse  by  any  such  grant,  but  such  as  are  ^i'e.  i.tit. 
partie  or  pri vie  thereunto;  as  the  patron   and   his  heires,   the  G™n^  «0. 
ordinary  and  his  successors,  and  the  parson  and  his  successors;  j^^^^(^_  ^.^ 
which  successors  of  tJie  parson  are  to  be  presented  by  the  patron  ^2  Cro.  197.) 
or  his  heires,  and  admitted  and  instituted  by  the  ordinary  or  his 
successors.     The  like  is   to  be  said  of  an  archdeacon,  prebend, 
vicar,  chauntrie  priest,  and  the  like. 

"By  the  deed  of  the  parson,  and  the  patron,  and  ordinarie,  &c"  J^^^P-  ^^"^ 
Yet  if  the  person  die,  and  in  time  of  vacation  the  patron,  of  the  ^^^'^\i  24. 

40  E.  3.  30.     3  E.  3.  17.     Reg.  38.     (Doct.  &  Stud.  50.  b.) 
(A)  See  ante  4.  a.  48.  h.  aSSent 


(1)  On  the  question,  whether  the  fee  simple,  during  the  suspense  of  a  con- 
tingent remainder,  remains  in  the  grantor,  or  is  in  abeyance,  see  Mr.  Fearne's 
Essay  on  Contingent  Kemainders,  6th  ed.  351. 


343.  b.  344.  a.]     Of  Discontinuance.  L.  3.  C.  11.  S.  648. 

assent  of  the  ordinary,  or  the  patron  and  ordinary  grant  an 
annuitie  or  rent-charge  out  of  the  glebe,  this  shall  (as  hath 
becne  said)  binde  the  succeeding  parsons  for  ever. 

If  there  be  parson,  patron,  and  ordinary,  and  the 
parson  by  the  ordinance  and  assent  Bf&"  of  the  ordi-   r34r4:.~| 
narie  grant  an  annuitie  to  another,  having  quid  pro    |_     ^-     J 
quo  in  consideration  thereof,  this  shall  binde  the  suc- 
cessor of  the  parson,  without  the  consent  of  the  patron. 

A  church  parochiall  may  be  donative  and  exempt  from  all 
ordinarie  jurisdiction,  and  the  incumbent  may  resigne  to  the 
patron,  and  not  to  the  ordinarie;  neither  can  the  ordinarie  visit, 
but  the  patron  by  commissioners  to  be  appointed  by  him.  And 
by  Littleton's  rule,  the  patron  and  incumbent  may  charge  the 
glebe;  and  albeit  it  be  donative  by  a  layman,  yet  merelaicus  is 
not  capable  of  it,  but  an  able  clerke  infra  sacros  ordines  is ;  for 
albeit  hee  come  in  by  lay  donation,  and  not  by  admission  or  in- 
stitution, yet  his  function  is  spirituall :  and  if  such  a  clerke 
donative  be  disturbed,  the  patron  shall  have  a  quare  impedit  of 
this  church  donative,  and  the  writ  shall  say,  quod  permittat 
ipsum  prcesentare  ad  ecclesiam,  &c.  and  declare  the  speciall  mat- 
ter in  his  declaration.  And  so  it  is  of  a  prebend,  chautery,  chap- 
pell,  donative,  and  the  like ;  and  no  laps  shall  incurre  to  the 
ordinary,  except  it  be  so  specially  provided  in  the  foundation. 
But  if  the  pati-on  of  such  a  church,  chantery,  chappell,  &c.  dona- 
tive, doth  once  present  to  the  ordinarie,  and  his  clerke  is  admit- 
ted and  instituted,  it  is  now  become  presentable,  and  never  shall 
be  donative  after,  and  then  laps  shall  incurre  to  the  ordinary, 
as  it  shall  of  other  benefices  presentable.  But  a  presentation  to 
such  a  donative  by  a  stranger,  and  admission  and  institution 
thereupon,  is  meerely  void.  And  all  this  was  resolved  by  the 
whole  court  of  king's  bench,  for  the  rectorie  parochiall  donative 
of  Saint  Burian  in  the  countie  of  Cornewall. 

It  appeareth  by  our  bookes,  and  by  divers  acts  of  parliament, 
that  at  the  first  all  the  bishopricks  in  England  were  of  the  king's 
foundation,  and  donative  per  traditionem  haculi  {id  est)  the 
crosier,  which  was  the  pastorall  staffe,  &  annuli,  the  ring  whereby 
hee  was  married  to  the  church.  And  king  Henry  the  first  being 
requested  by  the  bishop  of  Rome  to  make  them  elective,  refused 
it :  but  king  John  by  his  charter  bearing  date  quintoJuni  anno 
decinio  septimo,  granted  that  the  bishopricks  should  be  eligible. 
If  the  king  doth  found  a  church,  hospitall,  or  free  chappell  dona- 
tive, he  may  exempt  the  same  from  ordinarie  jurisdiction,  and 
then  his  chancellor  shall  visit  the  same.  Nay,  if  the  king  doe 
fouud  the  same  without  any  speciall  exemption,  the  ordinarie  is 
not,  but  the  king's  chancellor,  to  visit  the  same.  Now  as  the 
kino-  may  create  donatives  exempt  from  the  visitation  of  the 
ordinarie,  so  he  may  by  his  charter  licence  any  subject  to  found 
such  a  church  or  chappell,  and  to  ordaine  that  it  shall  be  dona- 
tive, and  not  presentable,  and  to  be  visited  by  the  founder,  and 
not  by  the  ordinarie.  And  thus  beganne  donatives  in  England, 
whereof  common  persons  were  patrons. 
H.  5.  c.  1.  (F.  N.  B.  35.  a.) 

"  Ordinarie."  Ordinarius  is  hee  that  hath  ordinarie  juris- 
diction in  causes  ecclesiasticall,  immediate  to  the  king  and  his 
courts  of  common  law,  for  the  better  execution  of  justice,  as  the 
bishop  or  any  other  that  hath  exempt  and  immediate  jurisdiction 
in  causes  ecclesiasticall. 


6  E.  3.  4.  55. 

7  E.  3.  40,  41. 
F.  N.  B.  152. 
17  E.  3.  32. 
39  E.  3.  17.  b. 
11  11.4.  68. 

8  H.  3.  23. 
Vi.  Sect.  133. 
530.     HE.  3. 
Jur.  utr.  3. 

8  Ass.  29.  31. 
13  Ass.  2. 


14 11.  3.  Quar. 
Imp.  183. 
17  E.  3.  12.  64. 
14  H.  4.  11. 
F.  N.B.33.C.16. 
c.  3.  Bre.  660. 
13  E.  4.  3. 
6  H.  7.  14. 
Vid.  Sect.  530. 
22  H.  6.  26. 
F.  N.  B.  35.  c. 


Hil.  1  Jac. 
Ci>r;im  Reg.  rot. 
601.  inter  Wil. 
FMirchild,  pi.  & 
Wil.  Gayer,  def, 
in  Trespass. 

17  E.  3.40. 
6  E.  3.  10. 
25  E.  3.  ca. 
Uuioo  de  Provi- 
sor.  Math.  Par. 
pa.  10  &  62, 


F.  N.  B.  35  E. 

42.  A.  B. 

27  E.  3.  8.  &  85. 

8  Ass.  29. 

8  E.  3.  Ass.  150 

18  E.  3. 

Scire  fac.  11. 

6  II.  7.  14. 

16  E.  3. 

Briefe,  660. 

21  E.  3.  60. 

Re^istr.  40. 

Dyer,  10  Eliz. 

f.  27.3. 

14  El.  ca.  5.     2 

(9  Rep.  39. 
4  Inst.  338. 
Ant.  96.  a.) 


I 


L,  3.  C.  11.  S.  648.      Of  Discontinuance.    [344.  a.  344.  b. 

"  Law  temporall."  Which  consisteth  of  three  parts,  viz.  First,  (Ant.no. 
on  the  common  law,  expressed  in  our  bookes  of  law,  and  judi-  115.  b.) 
ciall  records.     Secondly,  on  statutes  contained  in  acts  and  re- 
cords of  parliament.     And  thirdly,  on  customes  grounded  upon 
reason,  and  used  time  out  of  minde;  and  the  construction  and 
determination  of  these  doe  belong  to  the  judges  of  the  realme. 

"  Law   spirifiiall,   &c."      That  is,   the  ecclesiasticall    lawes  (12  Rep.  12.) 
allowed  by  the  lawes  of  this  realme,  viz.  which  are  not  against  nl^^^'g^^^^n^ 
the  common  law  (whereof  the  king's  prerogative  is  a  principall  3.,^  jj]  ^  34^ 
part)  nor  against  the  statutes  and  customes  of  the  realme  :  and  32  U.  6.  28. 
regularly  according  to  such  ecclesiasticall  lawes,  the  ordinarie 
and  other  ecclesiasticall   judges  doe  proceed  in  causes  within 
their  conusance.     And  this  jurisdiction  was  so  bounded  by  the 
ancient  common  lawes  of  the  realme,  and  so  declared  by  act  of 
parliament. 

"  Admission  r&  institution."  In  proprietie  of  speech,  admission 
is,  when  the  bishop  upon  examination  admitteth  him  to  be  able, 
and  saith,  Admitto  te  hahilem.     [d]  Institution  is,  when  the  [f^l  Lib.  4.  f.  75. 
bishop  saith,  Instituo  te  rectorem  talis  ecdesixe  cum  cura  anima-  j^.^  g  ^  ^g 
rum,  (&  accipe  curam  tuam  &  mcam.     [e]  But  sometimes  in  a  nb.  7.  fo.  46. 
more  larsie  sense,  admissus  doth  include  institutus  also  :  cuius  [e]  W.  2.  cap.  5. 
p>rcesentatus  sit  admissus,  (i.  e.)  lustifufiis.     And  it  is  to  be  ob-  ^"^  ^-  '■' 
served,  that  institution  is  a  good  plenartie  against  a  common 
person  (but  not  against  the  king  unlesse  he  be  inducted);  and  22  H.  6.27. 
that  is  the  cause  that  regularly  plenartie  shall  be  tried  by  the  38  E.  3.  4. 
bishop,  because  the  church  is  full  by  institution,  which  is  a  spi- 
rituall  act :  but  void  or  not  void  shall  be  tried  by  the  common  law.  Glanvill.  lib.  13. 

At  the  common  law,  if  an  estranger  had  presented  his  clerke,  ^■}^'  ^^^,"'^' 
and  he  had  beenc  admitted  and  instituted  to  a  church,  whereof  ^  5     Bractonj 
any  subject  had  beene  lawfull  patron,  the  patron  had  no  other  lib.  4.  fo.  238. 
remedy  to  recover  his  advowson,  but  a  writ  of  right  of  240.  244,  <fee. 

[S^-i."]  advowson,  wherein  the  J5@^  incumbent  was  not  to  be  ^  j\  jg,  17." 
b.     J  removed  :  and  so  it  was  at  the  common  law,  if  an  usur-  Brit.  f.  222, 

pation  had  beene  had  upon  an  infant  or  feme  covert,  223,  224.    ^ 
having  an  advowson  by  discent,  or  upon  tenant  for  life,  &c.  the  ^g.  39  e.  .3.'24. 
infant,  feme  covert,  and  he  in  the  reversion  were  driven  to  their  43  E.  3.25. 
writ  of  right  of  advowson;  for  at  the  common  law,  if  the  church  45  E.  .3. 
were  once  full,  the  incumbent  could  not  be  removed,  and  pie-  ![o']!;'^'2"coni.  22. 
nartie  generally  was  a  good  plea  in  a  quare  iiUfedit,  or  assise  of  31  e.  1.  Quar. 
darreine  presentment:  and  the  reason  of  this  was  to  the  intent  imp.  1P6.^ 
that  the  incumbent  might  quietly  intend  and  applie  himselfe  to  Lib  6^ 49' 50  b. 
his  spirituall  charge.     And  secondly,  the  law  intended,  that  the  g  Rep.  Green's 
bishop  that  had  cure  of  soules  within  his  diocese,  would  admit  case. 
and  institute  an  able  man  for  the  discharge  of  his  dutie  and  his  p^%"33  1, ) 
owne  ;  and  that  the  bishop  would  do  right  to  every  patron  within 
his  diocesse.     But  at  the  common  law,  if  any  had  usurped  upon 
the  king,  and  his  presentee  had  beene  admitted,  instituted,  and 
inducted,  (for  without  induction  the  church  had  not  beene  full  F.  X.  R.  36.  k. 
against  the  king)  the  king  might  have  removed  him  by  quare  im-  of'\%        3 
pedit,  and  beene  restored  to  his  presentation  :  for  therein  he  hath  '13  {{'2.  ca.  \. 
a  prerogative,  5?/ot?  indium  tempusoccurit  rcgi[A)',  but  he  could  4  11.  4.  ca.  21. 
not  present,  for  the  plenartie  barred  him  of  that;  neither  could  he  ^  H.  fol.  19. 
remove  him  any  way  but  by  action,  to  the  end  the  church  might 
be  the  more  quiet  in  the  meane  time.     [*]  Neither  did  the  king  [»]  Li.  6.  fo.  51. 

Li.  7.  fo.  19. 

3  H.  6.  Dam.  17.     34  H.  6.  28.     12  E.  3.  Champerty,  9.     18  E.  3.  2.     Temps  E.  1. 

Qiiar.  imp.  181. 
(A)   This  rule,  however,  is  subject  to  various  exceptions.     See.  ante  119,  a.  note  1. 

recover 


34^.  b.]         Of  Discontinuance.    L.  3.  C.  11.  Sect.  648. 


[a]  ^..2.  ca.  5. 
13  E.  1. 


[f/]  45  E.  3.  35. 
38  E.  3.  4. 
25  E.  3.  47. 

13  El.  Dy.  292. 
Reg.  302,  &c. 
18  El.  Dy.  348. 

14  E.  4.  2. 
7  H.  4.  32. 

31  E.  1.  Quar. 
imp.  185. 
W.  2.  ub.  sup. 
[h]  17  E.  3.  64. 
(2  Inst.  356. 
6  Rep.  29.  a. 
50.  a.) 


(3  Rep.  30.  a. 
50.  a.) 

9  H.  6.  32  &  56 
19  H.  6.  68. 


(7  Rep.  27. 
Cro.  Car.  74. 
Doct.  &  Stud. 
11  b.     Lib.  6. 
51.  Ant.  17.  b.) 


(10  Rep.  53. 

5  Rep.  102. 

6  Rep.  51. 
Hob.  201. 
2  Cro.  93.) 
18  E.  2.  Pre- 
sentment, 20. 
50  E.  3.  En- 
cumbent, 10. 
21  H.  7.  8.  a. 
&  b.     9  Eliz. 
Dyer,  260.     F. 

(A)  Here 
and  Mr.  Ritso 


recover  damages  in  his  quare  imjoedit  at  the  common  law.  But 
the  said  statute  [a]  hath  altered  the  common  law  in  the  cases 
aforesaid;  as  namely,  Quoad  hoc,  quod  si  pars  rca  accipiat  (A) 
de plenitndine  ecdesice  per  suam propriam p)rctsentationem,  non 
propter  illam  plenitudinem  remaneat  loquela  dummodo  hreve 
infra  tempas  semestre  impetretur,  &c.  and  also  hath  provided 
remedy  in-the  other  cases,  as  by  the  said  act  appeareth. 

[(/]  And  if  the  king  doe  present  to  a  church,  and  his  clerke 
is  admitted  and  instituted,  yet  before  induction  the  king  may 
repeale  and  revoke  his  presentation.  But  regularly  no  man  can 
be  put  out  of  possession  of  his  advowson  but  by  admission  and 
institution  upon  an  usurpation  by  a  presentation  to  the  church, 
cum  aliquis  jus prBesentandi  non  habens  prsesentaverit,  dr.  and 
not  by  collation  of  the  bishop :  [//]  and  therefore  if  the  bishop 
collate  without  title,  and  his  clerke  is  inducted,  this  shall  not 
put  the  rightful!  patron  out  of  possession  :  for  it  shall  be  taken 
to  be  only  provisionally  made  for  celebration  of  divine  service 
until  the  patron  doe  present ;  and  therefore  he  is  not  driven  to 
his  quare  impedit,  or  assise  of  darreine  presentment,  in  that 
case ;  but  an  usurpation  by  collation  shall  take  away  the  right 
of  collation  that  is  in  another  (1). 

It  is  to  be  observed,  that  an  usurpation  upon  a  presentation 
shall  not  only  put  out  of  possession  him  that  hath  right  of  pre- 
,  sentation,  but  right  of  collation  also.  Therefore  at  this  day  the 
incumbent  shall  be  removed  in  a  quare  impedit,ox  assise  of  dar- 
reine presentment,  if  there  be  not  a  plenartie  by  six  months  be- 
fore the  teste  of  the  writ :  but  then  the  incumbent  must  be  named 
in  the  writ,  or  else  he  shall  never  be  removed;  yet  at  the  common 
law,  if  the  ordinary  refused  to  admit  and  institute  the  clerke  of 
the  patron,  or  when  any  disturbed  him  to  present,  so  as  he  could 
notpreferre  his  clerke,  he  might  have  his  quare  impedit,  or  assise 
de  darreine  presentment ;  and  if  the  church  were  not  full,  have  a 
writ  to  the  bishop  to  admit  his  clerke  :  but  so  odiouswas  symonie 
in  the  eye  of  the  common  law,  that  before  the  statute  of  TF.  2.  he 
recovered  no  damages.  At  the  common  law,  if  hanging  the 
quare  impedit  against  the  ordinary  for  refusing  of  his  clerke,  and 
before  the  church  were  full,  the  patron  brought  a  qnarc  impedit 
against  the  bishop,  and  hanging  the  suit,  the  bishop  admit  and 
institute  a  clerke  at  the  presentation  of  another,  in  this  case  if 
judgement  be  given  for  the  patron  against  the  bisliop,  the  patron 
shall  have  a  writ  to  the  bishop,  and  remove  the  incumbent  that 
came  in  pendente  lite  by  usurpation,  for  pendente  lite  nihil  inno- 
vetur,  and  therefore  at  the  common  law  it  was  good  policie  to 
bring  the  q^lare  impedit  against  the  bishop  as  speedily  as  might 
be.  And  it  is  to  be  observed,  that  albeit  the  clerke  that  comes 
in  pendente  lite,  by  usurpation,  shall  be  removed;  yet  if  the  right- 
full  patron,  being  a  stranger  to  the  writ,  present  pendente  lite, 
and  his  clerke  is  admitted  and  instituted,  he  shall  not  be  removed; 
for  else  by  the  bringing  of  such  quare  impedit  against  the  ordi- 
nary, the  rightfuU  patron  might  be  defeated  of  his  presentation : 
and  therefore  ever  after  the  statute  of  Westm.  2.  amongst  other 
thint^s  it  was  enquired  ex  officio,  if  the  church  were  full,  and  of 

N  B   32.     14  H.  8.  31.     19  E.  2.     Dar.  Pres.  21.     10  E.  3.  17.     9  H.  6.  31. 

whose 

accipiat'  seems  to  he  printed  hy  mistake  instead  of  "  excipiat."     See  2  Inst.  354, 
'»  Intr.  p.  121. 


(1)  V.  Stat.  7  Ann.  c.  18. 


pt"-] 


L.  3.  C.  11.  S.  649-50.  Of  Discontinuance.  [341  b.34o.  a. 

whose  presentation,  &c.  and  if  tlie  plaintife  should  have  a  writ 
to  the  bishop,  and  his  clerke  admitted,  (as  in  most  cases  hee 
ought)  yet  may  the  rightful  incumbent  have  his  remedie  by  law. 

And  as  it  was  good  policie  (as  hath  beene  said)  to  bring  a  30  E.  3.  tit 
quare  impedit  as  speedily  as  might  be  against  the  bishop,  so  it  Qy"^-  ^\f^^ 
is  good  policie  at  this  day  to  name  the  bishop  in  the  quare  im-  9  h.'6.'32.'56. 
pedit,  fo"r  then  he  shall  not  present  by  laps.  But  seeing  the  bishop  19  H.  6.  68.  L. 
shall  not  present  by  laps  because  he  is  named  in  the  Avrit,  what  ^  E.  4.  llo. 
then,  after  that  the  time  be  devolved  to  the  metropolitan,  shall 
not  he  present  by  laps,  because  he  is  not  named  ?     To  this  it  is 
answered,  that  he  shall  not  in  that  case  present  by  laps ;  for  the 
metropolitan    shal   never   present  or   collate  by  laps  after  six 
moneth,  but  when  the  immediate  ordinary  might  have  collated  11  11.  4.  SO. 
by  laps  within  the  six  moneths,  and  had  surceased  his  ("ob.  154.) 
time.  And  so  it  is  if  the  time  be  devolved  to  the  king, 
J5@^  for  the  first  step  or  beginning  faileth ;  and  in 
humane  things,  Quod  non  habefprincipium,no7ihahet 
Jincm.  And  all  these  points  were  resolved  f  *]  in  a  writ  of  errour  ^^^^'^'|j!'- 
brought  by  Richard  bishop  of   London  and  Johi   Lancaster  (gp^"p_48.  b. 
against  Anthom/  iof^-pupona  judgement  given  against  them  in  2  Cro.  92.) 
a  quare  impedit  in  the  common-place  for  the  church  of  Wimbishe. 
But  now  let  us  heare  what  our  author  will  say  unto  us. 


Sect.  649. 

J  LSO,  if  tenant  in  tayle  hath  issue  and  is  disseised,  and  after  he  re- 
leaseth  by  his  deed  all  his  right  to  the  disseisor:  in  this  case  no  right 
of  taile  can  be  in  the  tenant  in  taile,  because  hee  hath  released  all  his 
right.  And  no  right  can  be  in  the  issue  in  taile  during  the  life  of  his 
father.  And  such  right  of  the  inheritance  in  the  taile  is  not  altogether 
expired  by  force  of  such  release,  cj-c.  Ergo,  it  must  needs  be  that  such 
right  remaine  in  abeiance,,  *  ut  supra,  during  the  life  of  tenant  in  taile 
that  releaseth,  cj-c.  and  after  his  decease  such  right  presently  is  in  his 
issue  in  deed,  ^c. 

Sect.  650. 

JN  the  same  manner  it  is,  ivhere  tenant  in  taile  grant  all  his  estate  to 
another ;  in  this  case  the  grantee  hath  no  estate  but  for  terme  of  life 
of  the  tenant  in  taile,  and  the  reversion  of  the  taile  is  not  in  the  tenant 
in  taile,  because  he  hath  granted  all  his  estate,  and  his  right,  ^c.  _  And 
if  the  tenant  to  ivhom  the  grant  was  made  make  waste,  the  tenant  in  tail 
shall  not  have  a  writ  of  waste,  for  that  no  reversion  is  in  him.  But  the 
reversion  and  inheritance  of  the  tail,  during  the  life  of  the  tenant  in 
taile,  is  in  abeiance,  that  is  to  say,  only  in  the  remembrance,  considera- 
tion, and  intelligence  of  thelaw^. 

LITTLETON- 


*  &c.  added  in  L.  and  M.  and  Roh.         f  ^c.  added  in  L.  and  M.  and  Roh. 


M5.  a.  345.  b.]    Of  Discontinuance.  L.  3.  C.  11.  S.  650. 

(Hob.  338.)  r  ITTLETON  having  declared  where  a  fee  is  in  abeyance,  and 

where  a  freehold  and  fee  is  in  abeyance  by  act  in  law,  and 
PI.  Com.  fol.  where  a  fee  that  is  in  abeyance  may  be  charged;  here  he  putteth 
Wais?n^ham's  ^^^  cases  where  a  right  of  an  estate  tail  may  be  in  abeyance  by  the 
case.  14  E.  3.  ^ct  of  the  partie,  which  are  so  clear  and  evident,  as  there  needs 
Discont.  5.  no  further  proofs  or  argument,  than  Littleton  hath  justly  and 

^&l°'\nt''n7'  ^^tifi^^'^lly  naade,  albeit  some  objections  of  no  weight  have  beene 
Dyer,  71.  a.) '    '  made  against  it.     If  tenant  in  taile  of  lands  holden  of  the  king 

19  II.  6.  60.  be  attainted  of  felonie,  and  the  king  after  office  seiseth  the  same, 
w  ^^'''  ?■     .       tlie  estate  taile  is  in  abeyance,  there  said  to  be  in  suspence. 

Walsingham  s  j  j  r 

case,  ubi.  supra.  Ant.  263.  b.  299.  b.  331.  a.  342.  b.) 

Vide  Sect.  65.  "  Grant  Ms  estate,  concedit  statvm  sttmn."     State  or  estate 

524,  525,  526.  signifieth  such  inheritance,  freehold,  terme  for  yeares,  tenancie 

14  Ass  28 '  ^y^  statute  merchant,  staple,  elegit,  or  the  like,  as  any  man  hath 

43  Ass.  8.  in  lands  or  tenements,  &c.     And  by  the  grant  of  his  estate,  &c. 

5  H.  7.  30.  much  as  he  can  grant  shall  passe,  as  here  by  Littleton's  case  ap- 

44  E^^3  10  pearcth.     Tenant  for  life,  the  remainder  in  taile,  the  remainder 

to  the  right  heires  of  tenant  for  life,  tenant  for  life  grant  totum 
statum  sinim  to  a  man  and  his  heires,  both  estates  doe  passe. 

(PIo.  484.)  '^  Right,"  Jus,  sive  rectum  (which  Littleton  often  useth)  sig- 

nifieth properly,  and  specially  in  writs  and  pleadings,  when  an 
estate  is  turned  to  a  right,  as  by  discontinuance,  disseisin,  &c. 
where  it  shall  be  said,  quod  jus  discendit  et  non  terra. 

20  H.  6.  9.  But  (Right)  doth  also  include  the  B@°"  estate  in  esse  r345.  ~| 
Vide  Sect.  465.  jji  conveyances ;  and  therefore  if  tenant  in  fee  simple  L  b-  J 
Lib.  8.  fol.  153.     D^^ke  a  lease  for  yeares,  and  release  all  his  right  in 

Althain's  case,  the  land  to  the  lessee  and  his  heires,  the  whole  estate  in  fee 
39  H.  6.  38.         simple  passeth. 

(lCro.429.)  And  so  commonly  in  fines,  the  right  of  the  landincludeth  and 

passeth  the  state  of  the  laud;  as  A.  cognovit  tenementa preedicfa, 

[a]  W.  2.  cap.  3.  esse  jus  ipsius,  B.  &c.     And  the  statute  [a]  saith,  /ms  sunm  de- 

*'/i«"°v.'  *^^'      fcndere,  (which   is)  statum  sunm.     And  note  that  there  is/cs 

rccuperandi,  jus  intrandi,  jus  hahendi^jus  retinendi,jus  pevci- 

piendi,  jus  possidendi. 

Title,  propeidy,  (as  some  say)  is,  when  a  man  hath  a  lawfull 

cause  of  entry  into  lands  whereof  another  is  seised,  for  the  which 

bee  can  have  no  action,  as  title  of  condition,  title  of  mortmaine, 

Vid  Sect.  429.      &c.     But  legally  this  word  (Title)  includeth  a  right  also,  as  you 

659,  &c.  shall  perceive  in  many  places  in  Littleton  :  and  title  is  the  more 

^  °^ '       •    •■'      generall  word  ;  for  every  right  is  a  title,  but  every  title  is  not 

such  a  right  for  which  an  action  lieth  ;  and  therefore  Titulus  est 

justa  causa  possidendi  quod  nostrum  est,  and  signifieth  the  meanes 

whereby  a  man  commeth  to  land,  as  his  title  is  by  fine  or  by 

feoffment,  &c.  And  when  the  plaintife  in  assise  maketh  himselfe 

6  H.  7.  8.  a.  a  title,  the  tenant  may  say,  Vcniat  assisa,  siqjer  titulvm  ;  which 
Altham's  case,  is  as  much  to  say,  as  upon  the  title  which  the  plaintife  hath  made 
u  1  supra.  i^y  ^^^^  particular  conveyance.  Ut  dicitur  titulus  d  tvendo,  be- 
cause by  it  he  holdeth  and  defendeth  his  land ;  and  as  by  a  re- 
lease of  a  right  a  title  is  released,  so  by  release  of  a  title  a  right 
is  released  also.  See  more  hereof  in  Fitzlierhert  and  Broohes 
Abridgements  in  the  title  of  Title. 

ri.  Com.  fol.  Interest.     Interesse  is  vulgarly  taken  for  a  terme  or  chattle 

374,  in  seignior 

Zouche's  case;  &  fol.  487  &  448,  in  Nichol's  case. 

reall, 


L.  3.  C.  11.  S.  651-52.  Of  Discontinuance.    [345.  b.  346.  a. 

reall,  and  more  particularly  for  a  future  tearme ;  in  which  case  it 

is  said  in  pleading,  that  he  is  possessed  de  inter  esse  termini.  But 

ex  vi  termini,  in  legall  understanding,  it  extendeth  to  estates, 

rights,  and  titles,  that  a  man  hath  of,  in,  to,  or  out  of  lands;  for 

he  is  truly  said  to  have  an  interest  in  them  :  and  by  the  errant  of  23  H.  8.  Taile. 
.   ,  .   /  •  Li      J  11  y  =  Br.  32. 35.  H.  8. 

totum  interesse  suiim  m  such  lands,  as  well  reversions  as  posses-  q^jj^^  jj^  j^q 

sions  in  fee  simple  shall  passe.     And  all  these  words  singularly  vide  16  Eliz. 

spoken  are  nomina  collect iva  ;  for  by  the  grant  of  totum  station  Djer,  325.  b. 

suum  in  lands  all  his  estates  therein  passe.     Et  sic  de  cceteris.         ""  "™' 

"  Shall  not  have  a  writ  of  waste,  &c."     So  it  is  if  tenant  for  43  Ass.  p.  13. 
life  be,  the  remainder  in  taile,  and  he  in  the  remainder  release  to  '^}  ^■^- 

'  tit    Wast    S3 

the  tenant  for  life,  all  his  right  and  state  in  the  land.     Hereby  jj'y  4.  g;] ' 
it  is  said  in  our  bookes,  that  the  estate  of  the  lessee  is  not  in-  13  H.  7.  10. 
larged,  but  the  release  serveth  to  this  purpose,  to  put  the  estate  P'-  Com.  482. 
taile  into  abeyance,  so  as  after  that  he  in  the  remaynder  cannot  27  h  's"^  20 
have  an  action  of  waste;  yet  in  that  case  (saving  reformation) 
the  lessee  for  life  hath  an  estate  for  the  life  of  tenant  in  taile 
expectant  upon  his  owne  life.     But  if  tenant  in  fee  release  to  his  42  E.  3.  23. 
tenant  for  life  all  his  right  yet  he  shall  have  an  action  of  waste.  ^-  N.  B.  60.  H. 
And  if  tenant  in  taile   make  a  lease   for  his  owne  life  he  shall  t^^^[^  '§3 
have  an  action  of  waste.  43  E.  3. 18. 


["t^-J 


«@- Sect.  651.  TlTni) 


I 


ALSO.,  if  a  hiaJiop  alien  lands  which  are  parcell  of  his  bishoprieke  and 
die,  this  is  a  discontinuance  to  his  successor.,  because  he  cannot  enter, 
hut  is  put  to  his  tvrit  o/de  ingressu  sine  assensu  capituli. 

OF  this  sufficient  hath  becne  said  (how  the  law  standeth  at  this 
day)  before  in  this  Chapter. 


Sect.   652.  (Ant.  342.  a.) 

ALSO,  if  a  dean  alien  lands*  which  he  hath  in  right  of  him  a7id  his 
chapter.,  and  dieth,  his  successor  may  t  enter.\  But  if  the  dean  bee 
sole  seised  as  in  right  of  his  deanry,  then  his  alienation  is  a  discontinu- 
ance to  his  successor,  as  is  said  before. 

HEREOF  also  that  which  was  necessary  is  before  said  in  22  E.  4. 
this   Chapter,  and  Littleton's  owne  words  are  plaine   and  '^^p^i,'*^"!"* 
evident.  21  E.  4.'  85,  86. 

Sect. 

*  which  he  hath  in  right  of  him  and  %  But  may  have  a  writ  de  ingressu 

his  chapter— parcel  of  his  deanry,  L.  sine  assensu  episcopi  et  capitnli,  (tc. 

and  M.  and  Koh.  added   in    L.  and    M.  and  lioh.  and 

■}•  not  added  in  L.  and  M.  and  Roh.  MSS. 


346.a.346.b.]  Of  Discontinuance.  L. 3. C.l  1.8.653-4-5-6. 


Sect.  653. 


A  LSO,  peradventure  some  will  argue  and  say,  that  if  an  abbot  and 

his  covent  bee  seised  in  their  demesne  as  of  fee  of  certaine  lands  to 

them  and  to  their  successors,  ^c.  and  the  abbot  without  the  assetit  of  his 

covent  alieyi  the  same  lands  to  another  and  die,  this  is  a  discontinuance 

to  his  successor,  ^c. 


Sect.  Q54.. 

7?  T  the  same  reason  they  will  say,  that  where  a  deane  and  chapter  (un 

(dean  *  en  chapter)  are  seised  of  certain  land  to  them  and 
their  successors,  if  the  deane  alien  the  same  lands,  ]^^  ^c.  this  ["346. ~j 
shall  be  a  dif<continuance  to  his  successor,  so  as  his  successor  L     "•     J 
cannot  enter,  ^c.     To  this  it  may  be  answered,  that  there  is  a 
great  diversity  betweene  these  two  cases  (perenter  les  f  deux  cases.) 


(Ant.  342.  a)  ScCt.    655. 

POR  when  an  abbot  and  the  covent  are  seised X,  yet  if  they  bee  dis- 
seised, the  abbot  shall  have  an  assise  in  his  oum  name,  ivithout  naming 
the  covent,  \.  ^-c.  And  if  any  tvill  sue  a  praecipe  quod  reddat,  &c.  of 
the  same  lands  when  they  were  in  the  hands  of  the  abbot  and  covent,  it 
behooveth  that  such  action  reall  be  sued  against  the  abbot  only  ivithout 
naming  the  covent  \\,  because  they  are  all  dead  persons  in  law,  but  the 
abbot  ivho  is  the  soveraigne,  ^c.  And  this  is  by  reason  of  the  sove- 
raignty  §  ;  for  otherwise  hee  should  be  but  as  one  of  the  other  monkes 
of  the  covent  (car  auterment  il  serroit  fosque  come  1  un  de  les  auters 
moignes  de  le  covent),  tfc. 


Sect.  656. 

J^UT  deane  and  chap>ter  are  not  dead  persons  in  law,  ^c.  for  every 

of  them  may  have  an  action  by  himself e  in  divers  cases.     And  of 

such  lands  or  tenements  as  the  deane  and  chapter  have  in  common,  S^c.  if 

they  bee  disseised,  the  deane  and  chapter  shall  have  an  assise,  and  not  the 

deane 

*  en — et  le,  L.  and  M  and  Roh.  |  <tc.  in  L.  and  M.  and  Roh. 

t  dites   added   in  L.  and  M.  and  \\&c.  added  in  L.  and  M.  and  Roh. 

Roh.  §  &c.  added  in  L.  and  M.  and  Roh. 

X  ctr.  added  in  L.  and  M.  and  Roh.  \  uu  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  11.  S.  657-58.  Of  Discontinuance.  [316.  b.  347.  a. 

deane  alone,  *  ^c.  And  if  another  will  have  an  action  reallfor  such  lands 
or  tenements  against  the  deane,  ^^c.  he  must  sue  against  the  dcane  and 

[3-47. "I  chapter,  and  not  against  the  deane  alone,  ^-c.  and  so  there 
^-     J  appearetlt  a  ^^  great  diversitie  betweene  the  tivo  cases,  ^-c. 

THESE  are  apparent  and  need  no  explanation.     Saving  in  (lo  Rep.  132. 
the  655  Section  mention  is  made  of  the  pro'cipe  quod  reddat,  ^-  N-  B.  2.  e. 
which  in  this  place  is  intended  of  a  reall  action  whereby  land  is 
demanded,  and  is  so  called  of  the  words  in  every  such  writ. 

And  the  reason  of  this  diversitie  betweene   the  case  of  the  y;j_  gggj_  goo. 
abbot  and  covent,  and  deane  and  chapter  is,  for  that  (as  hath  s  E.  3.  27. 
beene  said)  the  monkes  are  regular,  and  civilly  dead,  and  the  ^  }^-'^-^^' 
chapter  are  secular,  and  persons  able  and  capable  in  law.     But  "^^  y"  ^  -^^ 
by  the  policie  of  law  the  abbot  himselfe  (here  termed  the  sove- 
reigne)  albeit  he  be  a  monke  and  regular,  yet  hath  he  capacitie 
and  abilitie  to  sue  and  be  sued,  to  enfeoffe,  give,  demise,  and 
lease  to   others,  and   to  purchase  and   take  from   others;    for 
otherwise  they  which  right  have  should  not  have  their  lawfull 
remedie,  nor  the  house  remedie  against  any  other  that  did  them 
wrong:  neither  could   the    house   without   such   capacitie    and 
abilitie   stand.       And   the   covent   have   no    other    abilitie    or 
capacitie,  but  only  to  assent  to  estates  made  to  the  abbot,  and 
to  estates  made  by  him,  which  for  nccessitie's  sake,   though 
they  be  civilly  dead,  they  may  doe. 


oCCt.    U07.  (Plo.  22.  b.) 

ALSO,  if  the  master  of  an  hospitall  discontinue  certaine  larid  of  1m 
hospitall,  his  successor  cannot  enter,  but  is  put  to  his  writ  of  de 
ingressu  sine  assensu  confratrum  etf  consororum,  &c.     And  all  such 
torits  fully  appeare  in  the  Register,  cjx. 

n'^mS  must  also  be  understood  where  the  master  of  the 
-L  hospitall  hath  sole  and  distinct  possessions,  and  not  where 
he  and  his  brethren  are  seised  as  a  body  politike  aggregate  of 
many.  And  here  Litdeton  (as  divers  times  before)  doth  cite 
the  Register. 


Sect.   658.  (1  Roll.  Ab.  634,) 

A  LSO,  if  land  be  lett  to  a  man  for  terme  of  his  life,  the  remainder  to 
another  in  taile,  saving  the  reversion  to  the  lessor,  and  after  he  in  the 
remainder  disseiseth  the  tenant  for  terme  of  life,  and  maketh  a  feoffment 
to  another  in  fee,  and  after  dyeth  tvithout  issue,  and  the  tenant  for  life 
dyeth;  it  seemeth  in  this  case,  that  hee  in  the  reversion  may  ivell  enter 
upon  the  feoffee,  because  he  in  the  remainder  ivhich  made  the  feoffment, 
was  never  seised  in  taile  by  force  of  the  same  remainder,  ^^c. 

HERE 

*  rfr.  not  in  L.  and  M.  or  Roh.  f  corsororvm — sororum,  L  and  M 

and  Roh. 


U7.  b.]  Of  Remitter.        L.  3.  C.  12.  Sect.  659. 

Vid.  Sect.  637,     (KtTJERE  it  apeareth,  that  albeit  the  feoffor  hath  ["347. 1 

592.590,597.  JJL  an  estate  taile  in  him  expectant  upon  au  estate  L     b.      J 

flORen'  tt         ^^^  ^^^^'  y^^  ^^^  feoffement  worketh  no  discontinuance. 

1  Roll.  Abr.*        Wherein  Litth'ton  doth  adde  a  limitation  to  that  which  in  this 

634.)  Chapter  he  had  generally  said,  viz.  That  an  estate  taile  cannot 

be  discontinued,  but  where  he  that  makcth  the  discontinuance 

was  once  seised  by  force  of  the  taile;  which  is  to  be  understood, 

when  he  is  seised  of  the  freehold  and  inheritance  of  the  estate 

in  taile,  and  not  where  he  is  seised  of  a  remainder  or  reversion 

expectant   upon    a   freehold ;    which    freehold    (as    often    hath 

beene  said)  is  ever  much  respected  in  law. 


Chap.  12.  Of  Eemitter.  Sect.  659. 

T^EMITTER  is  an  ancient  terme  in  the  lazv,  and  is  ichere  a  man 
Jiath  tivo  titles  to  lands  or  tenements,  viz.  one  a  more  ancient  title^ 
and  another  a  more  latter  title;  and  if  he  come  to  the  land  by  a  latter 
title,  yet  the  law  will  adjudge  him  in  by  force  of  the  elder  title,  because 
the  elder  title  is  the  more  sure  and  more  ivorthie  title.  And  then  when 
a  man  is  adjudged  in  by  force  of  his  elder  title,  this  is  sayd  a  remitter  in 
him,  for  that  the  lazv  doth  admit  him  to  be  in  the  land  by  the  elder  and 
surer  title  (per  le  pluis  eigne  *  et  sure  title).  As  if  tenaunt  in  taile  dis- 
continue the  taile,  and  after  he  disseiseth  his  discontinuee,  and  so  dieth 
seised,  whereby  the  tenements  descend  to  his  issue  or  cosine  inheritable  by 
force  of  the  taile  ;  in  this  case,  this  is  to  him,  to  whom  the  tenements  descend, 
who  hath  right  by  force  of  the  tayle  a  remitter  to  the  tayle,  because  the  law 
shall  put  and  adjudge  him  to  bee  in  by  force  of  the  tayle,  which  is  his 
elder  title  :  for  if  he  should  bee  in  by  force  of  the  discent,  then  the  dis- 
continuee might  have  a  writ  of  entrie  sur  disseisin  in  the  per  against  him, 
and  should  recover  the  tenements  and  his  damages,  f  ^^c.  But  inasmuch 
as  he  is  in  his  remitter  by  force  of  the  taile,  the  title  and  interest  of  the 
discontinuee  is  quite  taken  away  and  defeated,  ^c.  (1). 

HERE  our  author  having  next  before  treated  of  a  Discon- 
tinuance, very  aptly  beginueth  this  Chapter  with  a  descrip- 
tion of  a  liemitter. 

(2  Roll.  Abr.  "  Remitter  is  an  ancient  terme  in  the  Jaw,"  and  is  derived  of  the 

422.)  Latine  verbe  remittere,  which  hath  two  significations;  either  to 

restore  and  set  up  againe,  or  to  cease.  Therefore  a  remitter  is 
an  operation  in  law  upon  the  meeting  of  an  ancient  right  reme- 
diable, and  a  latter  state  in  one  person  where  there  is  no  follie 
in  him,  whereby  the  ancient  right  is  restored  and  set  up  againe, 
and  the  new  defeasible  estate  ceased  and  vanished  away.     And 

the 

*  et  sure  7xot  in  L.  and  M.  or  Roh.      &c.  not  in  L.  and  M.  or  Roh. 


(1)  ^.s  to  the  general  doctrine  of  remitter : — In  note  1,  p.  239.  a.  notice  was 
taken  of  the  different  degrees  of  title,  which  a  person  disseising  another  of  his 
lands  acquires  in  them  in  the  eye  of  the  law,  independently  of  any  interior 

right: 


L.  3.  C.  12.  Sect.  659.       Of  Eemitter.  [347.  b. 

the  reason  hereof  is,  for  that  the  law  prefcrreth  a  sure  and  con- 
stant right,  though  it  he  little,  before  a  great  estate  by  wrong 
and  defeasible  ;  and  therefore  the  first  and  more  ancient  is  the 

most 


right :  That  if  ^.  is  disseised  by  B.  while  the  possession  is  in  B.  it  is  a  mere 
naked  possession,  unsupported  by  any  right ;  and  that  A.  may  restore  his  pos- 
session, and  put  a  total  end  to  the  possession  of  B.  by  an  entry  on  the  land, 
without  any  previous  action  :  but  that  if  B.  dies,  the  possession  descends  on 
his  heir  by  act  of  law.     That,  in  this  case,  the  heir  conies  to  the  possession  of 
the  land  by  a  lawful  title,  and  acquires  in  the  eye  of  the  law  an  apparent  right 
of  possession,  which  is  far  good   against  the  person  disseised,  that  _  he  has 
lost  his  right  to  recover  the  possession  by  entry,  and  can  only  recover  it  by  an 
action  at  law.     That  the  actions  used  in  these  cases  are  called  possessory  actions ; 
but  that  if  A.  permits  the  possession  to  be  withheld  from  him  beyond  a  certain 
period  of  time,  without  claiming  it,  or  suffers  judgment  in  a  possessory  action 
*to  be  given   against  him  by  default;  or,  if  being  tenant  in  tail,  he  makes  a 
discontinuance ;  in  all  these  cases,  ^.'s  title  is  strengthened,  and  A.  can  no 
longer  recover  by  his  possessory  action,  and  his  only  remedy  there  is  by  an 
action  on  the  right.     That  these  last  actions  are  called  droiturel  actions,  and 
that  they  had  the  ultimate  resource  of  the  person  disseised. — Now,  if  in  any  of 
these  three  different  stages  of  the  adverse  title,  the  disseisee,  without  any  default 
in  him,  comes  to  the  possession  of  the  estate  by  a  defeasible  title,  he  is  con- 
sidered to  be  in  not  as  of  his  new  right,  but  as  of  his  ancient  and  better  right ; 
and  consequently  the  right  of  the  person,  who,  supposing  the  disseisee  still  to 
be  in  as  of  his  defeasible  estate,  would  be  entitled  to  the  lands,  upon  the  cesser 
or  determination  of  that  estate,  is  gone  forever.     In  these  circumstances,  the 
disseisee  is  said  to  be  remitted  to  his  ancient  estate.     The  principal  reason  for 
his  being  remitted  is,  that  the  person  so  remitted  cannot  sue  or  enter  upon 
himself;  so  that  in  these  cases  where  the  possession  is  recoverable  by  entry, 
the  remitter  has  the  effect  of  a  judgment  at  law.     But  there  is  no  remitter 
where  he  who  comes  to  the  defeasible  estate,  comes  to  it  by  his  own  act,  or 
his  own  assent.     Hence  the  defeasible  estate,  to  entitle  the  party  to  be  re- 
mitted, must  be  made  to  him  during  infancy  or  coverture,  or  must  come  to 
him  by  descent,  or  act  of  law ;  neither  is  there  any  remitter  where  the  ancient 
estate  is  recoverable,  neither  by  action,  nor  by  entry.     So  that  in  those  cases 
where  the  disseisee  is  beyond  the  three  stages  mentioned  in  the  beginning  of 
the  note,  if  he  afterwards  comes  to  the  estate  by  a  defeasible  title,  he  remains 
seised  as  of  that  estate,  and  is  not  remitted  to  his  more  ancient  title.     These 
are  the  doctrines  of  the  common  law  respecting  remitter.     But  they  are  greatly 
altered  by  the  statute  of  the  27  Hen.   8.      That  statute  executes  the  pos- 
session to  the  party  in  the  same  plight,  manner,  and  form,  as   the  use  was 
limited  to  him.     It  operates  only  with  respect  to  the  first  taker,  and  therefore 
the  issue  is  remitted.     By  the  estate  of  32  Hen.  8,  it  is  enacted,  that  no 
fine,  feoffment,  or  other  act  by  the  husband,  of  the  wife's  lands,  shall  be  any 
discontinuance ;  but  that  the  wife   and   her  heirs,  and   such   others  to  whom 
the  right  shall  appertaine  after  her  decease,  shall,  notwithstanding  such  fine, 
or  other  act,  lawfully  enter  into  her  lands,  according  to  their  rights  and  titles 
*     therein.     This  takes  from  the  wife,  and   those  claiming  under  her,  the  effect 
of  the  statute  of  the  27  Hen.  8,  so  that  she   has  her  election  to  take  by  the 
27  Hen.  8,  or  to  enter  by  the  32  Hen.  8,  upon  which  she  shall  be  remitted. 
See  Duncombe  v.  Wingfield,  Hobart,  254.— Sir  W.  Blackstonc,  3  Com.  Cha.  10. 
observes  that  the  doctrine  of  remitter  might  seem  superfluous   to  an  hasty 
observer;  who  perhaps  would  imagine,  that  since  the  tenant  hath  now  both  the 
right,  and  also  the  possession,  it  little  signifies  by  what  means  such  possession 
shall  be  said  to  be  gained.     But  the  wisdom  of  our  ancient  law  determined 

nothing 

Vol..  II.— 40 


34:8.  a.]  Of  Kemitter.      L.  3.  C.  12.  Sect.  659. 

most  sure  and  more  worthy  title;  Qnod  pn'us  est,  verius  est,  d" 
[a]  25  Ass.pl.  4.  qiiod prius  est  tem2iore,  pot Im  est  jure :  [a]  therefore  many  bookes 
35  Ass.  pi.  11.     instead  of  remitter  say,  that  he  is  en  son  primer  estate,  or  en  son 

melior  droit,  or  en  son  melior  estate,  or  the  like  (1). 


26  E.  3.  69. 

11  H.  4.  50.  a 

41E.  3.  17.  b.     Et  tit.  Remit.  11.     6  E.  3.  17. 


(8  Rep.  153.)  "  Where  a  man  hath  two  titles."  Here  this  word  (Titles)  is  taken 

in  the  largest  sense,  including  rights :  for  being  properly 


[6]  Vide  Sect,      taken,  rtl  as  in  case  of  a  condition,  mortmame,  B^"  as-  r348 
429  &  659,  "  'L  J       .  .  .1 

34  H.  8.  tit. 


[34^ 

*29  *  659,  &c,    ggQ^  ^Q  a'ravisher,  and  the   like,  there  is  no  remitter  |_     a. 


Remitter,Br.  60.  Wrought  unto  them,  because  these  are  but  bar:;  titles  of 

44  E.  3.  '  entrie,  for  the  which  no  action  is  given  :  but  a  remitter  must  be 
^ttaint.  22.  ^q  ^  precedent  right :  and  Littleton  in  this  chapter  putteth  all 
(Plo.^484.     "       liis  cases  onely  of  remitters,  to  rights  remediable. 

Ant.  345.)     (2  Roll.  Abr.  421.) 

19  H.  6.  59.  78.         "  jind  another  a  more  latter  title,  &c."  Here  is  to  be  observed, 

45  tit  Entre  that  an  estate  must  work  a  remitter  to  an  ancient  right;  for 
PL  Com".  246.  a.  albeit  two  rights  doe  descend,  there  can  be  no  remitter,  because 
(3  Rep.  1.)  one  right  cannot  work  a  remitter  to  another;  for  regularly  to 

every  remitter  there  be  two  incidents,  viz.  an  action  right  and 
a  defeasible  estate  of  freehold  comming  together. 

"  The  elder  title  is  the  more  sure  and  more  xcorthie  title."  So 
as  the  eldest  title  is  worthily  (as  hath  been  said)  preferred,  be- 
cause it  is  .the  more  sure  and  more  worthy. 

19  H.  6.  61  62.  "  -^s  i/  tenant  in  taile  discontimie  the  taile,  &c."  Here  our 
author  according  to  his  accustomed  manner,  to  illustrate  his 
description  putteth  an  example  of  a  remitter,  where  the  law 
preferreth  the  ancient  estate  by  right,  before  a  new  estate  defea- 
sible. And  this  remitter  is  wrought  by  an  estate  cast  upon  the 
issue  in  taile  by  discent,  which  is  an  act  in  law,  and  the  discent 
of  the  land  in  possession,  and  the  right  of  estate  taile  descend 
together. 

(Post.  390.  a.  a  Jg  quite  taken  aicay  and  defeated,  &c."   Here  be  two  things 

Post  ^3*5^7  *a,)  implied  and  to  be  understood  :  First,  that  this  remitter  is  wrought 
in  this  case  by  operation  of  law  upon  the  freehold  in  law  de- 
scended without  any  entrie.  Secondly,  that  the  law  so  favoureth 
a  remitter  (being  a  restoring  to  right,  that  if  the  discontinuee 

be 


nothing  in  vain.  As  the  tenant's  possession  was  gained  by  a  defective  title, 
it  was  liable  to  be  overturned,  by  showing  that  defect  in  a  writ  of  entry ;  and 
then  he  must  have  been  driven  to  his  writ  of  right,  to  recover  his  just  in- 
heritance ;  which  would  have  been  doubly  hard,  because  during  the  time  he 
was  himself  tenant,  he  could  not  establish  his  prior  title  by  any  possessory 
action ;  the  law,  therefore,  remits  him  to  his  prior  title,  and  puts  him  in 
the  same  condition  as  if  he  had  recovered  the  land  by  writ  of  entry.  "Without 
the  remitter,  he  would  have  had_;«s,  et  seisinam,  separate,  a  good  right,  but  a 
bad  possession ;  now,  by  the  remitter,  he  hath  the  most  perfect  of  all  titles,  ^wns 
e^  seisinae  conjunct ionem. — [Note  299.] 

(1)  I.  Here  the  ancient  right  and  the  defeasible  estate  come  together.  It  is 
immaterial  whether  they  come  by  descent  or  by  other  act  of  law.  See  the  in- 
stances brought  by  Littl'eton  afterwards,  Sect.  6G5,  66G,  and  678. — [Note  300.] 


L.  3.  C.  12.  Sect.  660.       Of  Remitter.       [348.  a.  348.  b. 

be  an  infant  or  a  feme  covert,  and  tenant  in  taile  after  a  discon- 
tinuance disseise  them  and  die  seised,  the  issue  shall  be  remitted 
without  any  respect  of  the  privilege  of  infancie  or  coverture; 
and  therefore  our  author  said,  the  title  and  interest  of  the  discern-  11  E.  4. 1. 
tinuee  is  quite  taken  away  and  defeated. 

"  Then  the  discontinnee,  &c."    Here  is  a  reason  added  in  this  11  E.  3.  3._ 
particular  case,  that  fitteth  not  other  cases   of  remitter ;  for  in  V  g'^^^'J^' 
this  case  and  many  other,  the  law  that  abhorreth  suits  of  vexa-  n  j^  2, 
tion  doth  avoid  circuitie  of  action ;  for  the  rule  is,  Circuitus  est  Bar.  242. 
cvitandus.  6E^3^r^' 

19  II.  6.  63.    24  E.  3.  70.     14  H.  4.  27.     10  H.  7.  11.    F.  N.  B.  Mesne  &  Wast. 


Sect.  660. 

A  LSO,  if  tenant  in  tayle  infeoffe  Ms  sonne  in  fee,  or  his  cosine  in- 
heritahle  hy  force  of  the  taile,  which  sonne  or  cosine  at  the  time  of 
the  feoffment  is  within  age,  and  after  the  tenant  in  taile  dieth,  and  hee 
to  whom  the  feoffment  ivas  made  is  his  heire  hy  force  of  the  taile;  this  is 
a  remitter  to  the  heire  in  taile  to  ivhom  the  feoff ement  was  made.  For 
albeit  that  during  the  life  of  the  tenant  in  tayle  who  made  the  feoffement, 
sUch  heire  shall  bee  adjudged  in  by  force  of  the  feoffement,  yet  after  the 
death  of  tenant  in  taile,  the  heire  shall  he  adjudged  in  hy  force  of  the 
taile,  and  not  by  force  of  the  feoffment.  *  For  (A)  altho'  such  heire  ivere 
of  full  age  at  the  time  of  the  death  of  the  te7iant  in  taile  who  made  the 
feoffment,  this  makes  no  matter,  if  the  heire  ivere  within  age  at  the  time 
of  the  feoffement  jnade  unto  him.  And  if  such  heire  heeing  within  age 
at  the  time  of  such  feoffment,  commeth  to  full  age,  living  the  tenant  in 
tayle  that  made  the  feoff  on  ent,  and  so  being  of  full  age  he  charges  by 
his  deed  the  same  land  with  a  common  of  pasture,  or  with  a  rent  charge, 
and  after  the  tenant  in  tayle  dieth;  now  it  seemeth  that  the  land  is  dis- 
charged of  the  common,  and  of  the  rent,  for  that  the  heire  is  in  of  another 
estate  in  the  landthan  he  was  at  the  time  of  the  charge  made,  in  as  much 
as  hee  is  in  his  remitter  by  force  of  the  tayle,  and  so  the  estate  whicli 
hee  had  at  the  time  of  the  charge,  is  utterly  defeated,  f  ^(?.(1) 


0 


UR    author    having    put    one    example    where    both    the  Tomps  E.  1. 
rights  descend  together,  now  puts  another  example.  Remit.  13. 


t34,8.~|   J5@°  where  the  issue  in  taile  claimeth  by  purchase  in  ^g  ^  ^  jf^'  ^" 
b.    J  the  life  of   tenant   in   taile,  and  the  ancient  right  40  e!  3!  43. 
descendeth  after  to  the  same  issue.  21  E.  4. 19. 

"  For  altho'  such  heire  were  of  full  age  at  the  time  of  the  death, 

&c." 

*  For  not  in  L.  and  M.  or  Roh.  f  dx.  not  in  L.  and  M.  or  Roh. 

(A)  Perhaps  "And"  Bhould  be  inserted  here  instead  of  "Tot."     See  Mr.  Ritso's  Intr. 
p.  113,  114, 


(1 )  II.  Here  the  ancient  right  comes  after  the  defeasible  estate. — [Note  301.] 


348.  b.  349.  a.]      Of  Kemitter.       L.  3.  C.  12.  Sect.  660. 

&c."  The  reason  is,  because  no  follie  can  be  adjudged  in  the 
infant  at  the  time  of  the  acceptance  of  the  feoffement.  There- 
fore the  law  respcctcth  the  time  of  the  feoffement,  and  not  the 
time  of  the  death.  And  albeit  he  might  have  waived  the  estate 
which  he  had  by  the  feoffement  at  his  full  age,  yet  here  it 
appcareth,  that  the  right  of  the  estate  taile  descending  to  him 
either  within  age,  or  of  full  age,  shall  work  a  remitter  in  him ; 
for  that  the  waiver  of  the  state  should  have  beene  to  his  losse 
and  prejudice. 

Since  Littleton  wrote,  and  after  the  statute  of  27  B.  8.  cap. 
10,  if  tenant  in  taile  make  a  feoffement  in  fee  to  the  use  of  his 
issue  being  within  age,  and  his  heires,  and  dieth,  and  the  riglit 
of  the  estate  taile  descend  to  the  issue  being  within  age;  yet  he 
is  not  remitted,  because  the  statute  executeth  the  possession  in 
such  plite,  manner  and  forme,  as  the  use  was  limited :  Et  sic  de 
similibiis,  so  as  there  is  a  great  change  of  remitters  since  Little- 
ton wrote  (1). 

34  H.  8.  tit.  Remit.    Br.  49.     (Dyer.  106.    Sid.  63.    1  Leo.  91. 
I 

But  if  the  issue  in  taile  in  that  case  waive  the  possession,  and 
bring  a  formedon  in  the  discender,  and  recover  against  the 
feoffees,  he  shall  thereby  bee  remitted  to  the  estate  taile ;  other- 
wise the  lands  may  be  so  incumbred,  as  the  issue  in  taile  should 
be  at  a  great  inconvenience ;  but  if  no  formedon  be  brought,  if 
that  issue  dieth,  his  issue  shall  be  remitted ;  because  a  state  in 
fee  simple  at  the  common  law  descendeth  unto  him. 

"  Being  of  full  age  he  charges  hy  his  deed,  S^^  c&c"  r349."| 
The  reason  is,  because  the  grantor  had  not  any  right  L  ^-  J 
of  the  estate  in  taile  in  him  at  the  time  of  the  grant, 
but  only  the  estate  in  fee  simple  gained  by  the  feoffment,  which 
(as  Littleton  here  saith)  is  wholly  defeated.  And  the  state  of 
the  land  out  of  which  the  rent  issued,  being  defeated,  the  rent 
is  defeated  also. 

But  if  tenant  in  taile  make  a  lease  for  life  whereby  he  gaineth 
a  new  reversion  in  fee,  so  long  as  tenant  for  life  liveth,  and  he 
granteth  a  rent  charge  out  of  the  reversion,  and  after  tenant  for 
life  dieth,  whereby  the  grantor  becommeth  tenant  in  taile  againe, 
and  the  reversion  in  fee  defeated ;  but  because  the  grantor  had  a 
right  of  the  entaile  in  him;  cloathed  with  a  defeasible  fee  simple, 
the  rent-charge  remaineth  good  against  him,  but  not  against  his 
issue ;  which  diversitie  is  worthy  of  observation,  for  it  openeth 
the  reason  of  many  cases. 

If  the  heire  apparent  of  the  disseisee  disseise  the  disseisor,  and 
grant  a  rent-charge,  and  then  the  disseisee  dieth,  the  grantor 
shall  hold  it  discharged ;  for  there  a  new  right  of  entrie  doth 
descend  unto  him,  and  therefore  he  is  remitted. 

So  if  the  father  disseise  the  grandfather,  and  granteth  a  rent- 
charge,  and  dieth,  now  is  the  entry  of  the  grandfather  taken 
away,  if  after  the  grandfather  dieth  the  sonne  is  remitted,  and 

he 


27  H.  8.  c.  10. 
of  Uses. 

35  H.  8. 
Dy.  54.  b. 
6  E.  6.  ib.  77. 
1  A  2  P.  A  M. 
116.    1  &  2  P. 
&  M.  129.  191, 

28  H.  8.  23  b. 
PI.  Com.  Amy 
Townshend's 
case,  fol.  111. 
Hob.  255.  298, 

PI.  Com.  ubi 
supra. 


(2  Roll.  Abr. 
419.421. 
1  Roll.  Rep. 
260.) 

(2  Roll.  Abr. 
419.421. 
3  Rep.  5.  b. 
Hob.  45.) 


11  H.  7.  21. 
Edriche's  case. 
(Mo.  319. 
1  Rep.  148. 
Ant.  278.  a.) 


(2  Roll.  Abr. 
422.) 


(I)  The  effect  of  this  statute  on  the  doctrine  of  Remitter  is  very  fully  ex- 
plained in  Duncombe  v.  Wingfield,  Hob.  254.  See  2  Leo.  222.  1  Sid.  63. 
Dyer,  351. 


L.  3.  C.  12.  Sect.  661.     Of  Remitter.      [349.  a.  349.  b. 

he  shall  avoid  the  charge.     So  as  where  our  author  putteth  his 
example  of  a  fee  taile,  it  holdeth  also  in  case  of  a  fee  simple. 

"A  common  cf  pasture  or  a  rent  charge,  tfr."  Here  Littleton 
putteth  his  case  of  things  granted  out  of  the  land.  But  what  if 
the  issue  at  full  age  by  deed  indented  or  deed  poll  make  a  lease 
for  yeares  of  the  land,  and  after  by  the  death  of  tenant  in  taile  he 
is  remitted,  whether  shall  be  avoid  the  lease  or  no  ?  And  it  is  33  H.  8. 
holden  he  shall  not,  because  it  is  made  of  the  land  it  selfe,  and  Dier,  51.  b. 
the  land  is  become  by  the  lease  in  another  plight  than  it  is  in 
the  case  of  a  grant  of  a  rent-charge,  which  I  gather  out  of  our 
author's  owne  words  in  another  place.  Vide  Sect.  289. 

"  The  land  is  discharged  of  the  rent,  &c."  Littleton  doth  adde 
these  words  materially,  because  the  whole  grant  is  not  thereby 
avoided,  but  the  land  discharged  of  the  rent-charge ;  for  the 
grantee  shall  have  notwithstanding  a  writ  of  annuitie,  and  charge  lj.  2.  f.  36.  b. 
the  person  of  the  grantor.  Ward's  case. 


Sect.  661. 

ALSO,  a  principall  cause  why  such  heire  in  the  cases  aforesaid,  and 
other  like  eases,  shall  bee  said  in  his  remitter,  is  for  that  there  is  not 
any  person  against  whom  he  may  sue  his  writ  of  formedon.  For  against 
himselfe  he  cannot  sue,  and  hee  cannot  sue  against  any  other,  for  none 
other  is  tenant  of  the  freehold  ;  and  for  this  cause  the  law  doth  adjudge 
him  his  remitter,  scilicet,  in  such  plite,  as  ifhee  had  laivfully  recovered 
the  same  land  against  another,  d-c. 

"A  principall  cause  why,  &c."     And  of  this  opinion  is  [^7]  LiV-  [ffl  12  E.  4.  20. 

■*^  tlcton  in  our  bookes.  ^\  „  ^;  \^: 

11  U.  4.  50. 

"  Tliere  is  not  any  person  against  whom,  &c.   as  if  hee  had  (6  Rep.  58.  b. 
lawfully  recovered  the  same  land  against  another,  &c."   Here  it  is  1  Sid.  63. 
to  be  understood,  that  regularly  a  man  shall  not  be  re-  419*^  ' 

t 34:9.1   raitted  to  a  JO®"  right  remedilesse,  for  the  which  he  can  Lib.  3.  f.  3.  the 
b.     J   have  no  action  ;  for  Z«*V/^i°to?i  here  saith,  that  there  is  no  Marquesso  of 
person  airainst  whom  the  issue  when  he  commeth  to  the  Winchester  s 

t^  O  ^  ^  CS.S6. 

land  without  folly  may  bring  his  action ;  and  saith  also,  that  this  ^3  Rep.  3.) 
is  the  principall  cause  of  the  remitter;  for  neither  an  action 
without  a  right,  nor  a  right  without  an  action,  can  make  a  re- 
mitter. As  if  tenant  in  taile  suffer  a  common  recovery  in  which 
there  is  error,  and  after  tenant  in  taile  disseiseth  the  recoveror 
and  dieth,  here  the  issue  in  taile  hath  an  action,  viz.  a  writ  of 
error ;  but  as  long  as  the  recoverie  remaineth  in  force,  he  hath 
no  right,  and  therefore  iu  that  case  there  is  no  remitter  (1). 

If 

(1)  III.  By  what  sir  Edward  Coke  says  here,  and  in  other  parts  of  this 
Chapter,  it  appears,  that  there  is  no  remitter  to  a  hare  title,  nor  to  an  irremediable 
right,  nor  to  a  hare  right  of  act  ion,  nor  in  those  cases  where  the  freehold  does  not 
accrue  to  the  right,  nor  where  there  was  default  in  him  who  takes  the  defea- 
sible estate,  nor  if  he  takes  the  defcasihlc  estate  by  st.  27  S.   8.  c.  10,  which 

executes 


349.  b.] 


(Ant.  122.  b.) 
5  H.  7.  35. 


BrittoD,  fol.  126. 

[e]  Bract,  li.  4. 
lb.  243.  b. 
SR.  2. 

Quare  Imp.  199. 
2  H.  4. 18. 
UH.  6.  15,16. 
S  H.  6.  17. 
;^3  H.  6.  15. 
F.  N.  B.  35.  B. 
A  36.  F. 
24  E.  3. 
Discont.  16. 
:i3  n.  8. 
Bier,  48.  b. 
{Ant.  324.  b. 
333.  b.) 
(Post.  303.  b.) 


Of  Remitter.       L.  3.  C.  12.  Sect.  662. 

If  B.  purchase  an  advowson,  aud  suffereth  an  usurpation  and 
six  moneths  to  passe,  and  after  the  usurper  granteth  the  advow- 
son to  B.  and  his  heires,  B.  dieth,  his  heire  is  not  remitted, 
because  his  right  to  the  advowson  was  rcinedilesse,  viz.  a  right 
without  an  action  (2). 

Tenant  in  taile  of  a  mannor  whereunto  an  advowson  is  appen- 
dant maketh  a  discontinuance,  the  discontinuee  granteth  the 
advowson  to  tenant  in  taile  and  his  heires,  tenant  in  taile  dieth, 
the  issue  is  not  remitted  to  the  advowson,  because  the  issue  had 
no  action  to  recover  the  advowson  before  he  recovered  the  man- 
nor whereunto  the  advowson  was  appendant.  And  so  it  is  of 
all  other  inheritances  regardant,  appendant  or  appurtenant ;  a 
man  shall  never  be  remitted  to  any  of  them  before  he  recontin- 
ueth  the  mannor,  &c.  whereunto  they  are  regardant,  appendant, 
or  belonging. 

Cur  nul  ne  poet  claimer  droit  en  les  appurtenances  ne  en  les 
accessories  que  nul  droit  ad  en  le  principall. 

[e]  Item,  excipi potest,  &c.  quamvisjus  habeatin  tenemento  et 
pertinentiis,  jirinio  recuperare  debet  tenementuni  ad  qund  pertinet 
ndvocatio,  et  tunc postea  prsesentet  et  non  ante,  et  de  hac  materia 
in  Rotulo  de  termino  Sancti  3Iichaelis,  anno  rexjis  Henrico  tertio 
in  comitatu  Norff.  de  Thoma  Bardolfe. 

But,  on  the  other  side,  if  a  man  be  remitted  to  the  principall, 
he  shall  also  be  remitted  to  the  appendant  or  accessory,  albeit  it 
were  severed  by  the  discontinuee,  or  other  wrong  doer.  And 
therefore  if  tenant  in  taile  be  of  a  mannor  whereunto  an  advow- 
son is  appendant,  andinfeoffeth  A.  of  the  mannor  with  the  appur- 
tenances, A.  re-infeoflFeth  the  tenant  in  taile,  saving  to  hiniselfe 
the  advowson,  tenant  in  taile  dieth ;  his  issue  being  remitted  to 
the  mannor,  is  consequently  remitted  to  the  advowson,  although 
at  that  time  it  was  severed  from  the  mannor.  So  it  is  in  the  same 
case  if  tenant  in  taile  had  beene  disseised,  and  the  disseisor  sutler 
an  usurpation,  if  the  disseisee  enter  into  the  mannor,  he  is  also 
remitted  to  the  advowson. 


Sect.  662. 

ALSO,  if  land  he  entailed  to  a  man  and  to  his  ivife,  and  to  the  heires 

of  their  two  bodies  begotten,  ivho  have  issue  a  daughter,  and  the  wife 

dieth,  and  the  husband  taketh  another  loife,  and  hath  issue  another 

daughter, 


executes  the  possession  in  the  same  plight  as  the  use  was  limited.  It  is  upon 
the  last  ground,  that  where  tenant  in  tail  makes  a  feoffment  to  the  use  of  his 
issue  within  age,  and  dies,  the  issue  in  tail  is  not  remitted.  Neither  is  there 
a  remitter  to  a  term  for  years.  Hence,  if  lessee  for  years,  to  commence  at  a 
future  day,  enters  before  that  day  (which  is  a  disseising,  and  continues  in 
possession  till  the  term  commences,  he  shall  not  be  remitted,  for  tlie  disseisor 
acquires  by  the  disseisin  an  estate  of  freehold;  which,  though  it  be  tortious, 
the  law  will  not  divest  from  him  for  a  term  which  is  of  no  account.  See  2 
lloU.  Abr.  420. 1.  35.     Com.  Dig.  tit.  Remitter,  C— [Note  302.] 

(2)  This  seems  to  be  altered  by  the  afore-meutioaed  statute  of  7  Ann.  c.  18. 
^ote  to  the  llth  edition. 


L.  3.  C.  12.  Sect.  663.        Of  Remitter.  [350.  a. 

daughter,  and  discontinue  the  taile,  and  after  he  disseiseth  the 

[350.1  discontinuee  and  )&@=  so  die  seised,  now  the  land  shal  descend 
a.  J  to  the  ttvo  daughters.  ^Andinthis  case  as  to  the  eldest  daughter, 
who  is  inheritable  by  force  of  the  tayle,  this  is  no  remitter  but  of 
the  moitie  (ceo  f  n'est  un  remitter  forsque  de  le  moity).  And  as  to  the 
other  moitie  she  is  put  to  sue  her  action  of  formedon  against  her  sister. 
For  in  this  case  the  tivo  sisters  are  not  tenants  in  j^arcenarie,  but  they  are 
tenants  in  common,  for  that  they  are  in  by  divers  titles.  For  the  one 
sister  is  in  her  remitter  by  force  of  the  entaile,  as  to  that  which  to  her 
belongeth  ;  and  the  other  sister  is  in  as  to  that  to  her  belongeth  in  fee 
simple  by  the  discent  of  her  father,  |(|"c. 

"  rpniS  is  no  remitter  hut  of  the  moities,  &e."     Here  Littleton  44  E.  3.  26. 
putteth  a  case  where  the  issue  in  taile  shall  be  remitted  to  }d,^'o<«^^\ 

••i_  1  •  n     ^       1       1     1  11  ,  (rlo.  24d.  a.j 

a  moitie,  because  but  a  moity  of  the  land  descended  unto  her, 
and  there  cannot  be  any  remitter,  but  for  so  much  as  commeth 
to  the  issue  by  discent,  or  by  any  other  means  without  his 
folly;  and  in  this  case  by  act  in  law  the  coparcenary  is  defeated, 
for  the  daughters  are  in  by  severall  titles,  viz.  the  eldest  daughter 
is  tenant  in  taile  ^.»er  formam  doni,  by  the  remitter  of  the  one 
moitie;  and  the  youngest  seised  in  fee  simple  by  discent  of  the 
other  moitie,  against  whom  the  other  sister  in  taile  may  have 
rmedon  (1). 

Sect.  663. 

TN  the  same  manner  it  is,  if  tefiant  in  taile  enfeoffe  his  heire  apparent 

in  tayle  {the  heire  being  ivithin  age),  and  another  jointenant  in  fee,  and 

the  tenant  in  tayle  dieth  ;  noiv  the  heire  in  tayle  is  iri  his  remitter  as  to 

the  one  moitie,  and  as  to  the  other  moitie  hee  is  put  to  his  writ  of 

formedon,  ||  ^c. 

"  rplIE  heire,  &c.  is  in  his  remitter  as  to  one  moitie,  &c."  (2  Roll.  Abr. 

Hereby  it  appeareth  that  albeit  joyutenanls  be  seised  41.) 
pro  indiviso  per  my  et  per  tout,  yet  each  of  them  hath  in  judge-  ' 

ment  of  law  but  a  right  to  a  moitie;  and  therefore  the  issue  in 
taile  in  this  case  is  remitted  but  to  a  moity,  and  is  tenant  in 
common  but  with  the  other  feoflFee.  And  so  it  is  if  the  discon- 
tinuee, after  the  death  of  tenant  in  tayle,  make  a  charter  of 
feoffment  to  the  issue  in  tayle,  being  within  age,  who  hath  right, 
and  to  a  stranger  in  fee,  and  make  livery  to  the  infant  in  name 
of  both;  the  issue  is  not  remitted  to  the  whole,  but  to  the 
halfe;  for  first  he  taketh  the  fee  simple,  and  after  the  remitter 
is  wrought  by  operation  of  law,  and  therefore  can  remit  him 
but  to  a  moitie.  But  of  this  sufficient  hath  been  said  in  the 
Chapter  of  Joyntenauts. 

Sect. 

*  A7id  not  in  L.  and  M.  or  Roh.  |  d-r.  not  in  L.  and  M.  or  Roh. 

f  n'est — est,  L.  and  31.  and  Boh.  ||  d-c.  not  in  L.  and  M.  or  Roh. 


(1)  IV.  By  this  and  the  following  section  it  appears,  that  if  part  of  the 
estate  comes  to  the  right,  it  is  remitted  for  that  purpose. — [Note  303.] 


350.  b.J  Of  Remitter.  L.  3.  C.  12.  Sect.  664-65 

js@"  Sect.  664.  [  b.    J 

A  LSO,  if  tenant  in  tayle  enfeoffe  his  heire  apparent,  the  heire  being 

of  full  age  at  the  time  of  the  feoffment,  and  after  tenant  in  tayle 

dieth;  this  is  no  remitter  to  the  heire,  because  it  ivas  his  folly,  that  being 

of  full  age  hee  would  take  such  feoffment,  ^c.    But  such  folly  cannot  he 

adjuged  in  the  heire  being  within  age  *  at  the  time  of  the  feoffment,  ^c. 

(Ant.  171.  b.  ~n  Y  this  feoffment,  albeit  the  heire  apparent  hath  some  benefit 
187.  a.  246.  a.  Jj  in  the  life  of  his  ancester,  yet  he  is  thereby  (besides  his  owne) 
3-|7.  b.  308.  b.)  gyjjjgct  during  his  life  to  all  charges  and  incumbrances  made  or 
18  e!  4!  25!  suffered  by  his  ancestor.     And  therefore  our  author  saith  well, 

it  teas  Ms  folly,  that  being  of  full  age  hee  icould  take  such  feoff- 
ment, but  folly  shall  not  be  judged  in  one  within  age  in  respect 
of  his  tender  yearcs,  and  want  of  experience. 


Sect.  665. 

A  LSO,  if  tenant  in  taile  enfeoffe  a  luoman  in  fee,  and  dyeth,  and  his 
issue  tvithin  age  taJceth  the  same  ivomanf  to  wife;  this  is  a  remitter 
to  the  infantX  ivithin  age,  and  the  wife  then  hath  7iothing,  for  that  the 
husband  and  his  wife  are  but  as  one  person  in  law.  And  in  this  case 
the  husband  cannot  sue  a  tvrit  of  formedon,  unless  he  will  sue  against 
himself e,  which  should  be  inconvenient,  and  for  this  cause  the  laiv  ad- 
judgeth  the  heire  in  his  remitter,  for  that  no  folly  can  be  adjuged  in  him 
(pur  ceo  que  nul  folly  poit  estre  ||  adjudge  en  luy)  being  within  age  at  the 
time  of  the  espousels,  ^c.  A7id  if  the  heire  bee  in  his  remitter  by  force 
of  the  entaile,  it  followeth  by  reason,  that  the  wife  hath  nothiny,  ^c.  For 
inasmuch  as  the  husband  and  wife  be  as  one  person,^  the  land  cannot  be 
parted  by  moities;  and  for  this  cause  the  husband  is  in  his  remitter  of  the 
whole.  But  othenvise  it  is  if  such  heire  were  of  full  age  at  the  time  of 
espousels,  for  then  the  heire  hath  nothing  but  in  right  of  his  wife,  §  ^e. 

(Ant.  202.  b.)  Tl  ERE  Littleton  putteth  a  case  where  the  husband  within  age 
I  i  by  the  intermarriage  may  be  remitted,  albeit  he  gaineth 
but  a  freehold  during  the  overture  en  aider  droit. 

Also  here  is  to  bee  observed,  that  the  estate  which  doth  in  this 
case  worke  the  remitter,  could  not  have  continuance  after  the 
decease  of  the  wife.  And  so  on  the  other  side,  if  the  husband 
make  a  discontinuance,  and  take  backe  an  estate  to  him  and 
his  wife,  during  the  life  of  the  husband,  this  is  a  remitter  to  the 
wife  presently,  albeit  the  estate  is  not  by  the  limitation  to  have 
continuance  after  the  decease  of  the  husband;  which  case  is 
proved  by  the  reason  of  the  case  which  our  author  here  putteth. 
And  here  our  author  observeth  the  diversity  when  the  husband 

is 

*  &c.  added  in  L.  and  M.  and  Roh.         1|  adjudge— avette,  L.  and  M.  and 

■\  to  wife  not  in  L.  and  M.  or  Roh.       Roh. 

X  within  age  not  in  L.  and  M.  or  Roh.         §  &c.  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  12.  Sect.  665.    Of  Remitter.       [350.  b.  351.  a. 

is  within  age,  and  when  hee  is  of  full  age ;  for  when  he  is  within 
age,  no  folly  can  be  adjudged  in  him,  as  in  this  Chapter  hath 
beene  often  said. 

[351.1  O^Here  is  also  to  bee  noted,  that  presently  by  themar- 
a.     J  riage  within  age,  the  husband  is  remitted  and  the  free- 
hold and  inheritance  of  the  wife  banished  cleane  away. 

"  Taketh  the  same  woman  to  wife."  Here  it  is  good  to  be  scene  (4  Rep.  29.) 
what  things  are  given  to  the  husband  by  marriage.  (1)    First,  it 

appeareth 

(1)  On  the  interest  which  the  husband  takes  in  the  chattels  real  and  things  in 
action  of  his  wife. — Some  observations  have  been  offered  to  the  reader  in  a 
former  part  of  this  work,  upon  the  nature  of  the  estate  which  the  husband 
takes  in  his  wife's  lands  of  freehold  or  inheritance.     See  ante,  325.  b.  note  ^. 
The  following  observations  are  now  submitted  to  his  consideration,  upon  the 
nature  of  the  interest  the   husband   takes   in    his   wife's   chattels  real    and 
things  in  action.     I.  Where  the  husband  survives  his  loife : — At  the  common 
law  no  person  had  a  right  to  administer  ;  it  was  in  the  breast  of  the  ordinary  to 
grant  administration  to  whom  he  pleased  till  the  statute  of  the  21  Henry  VIII. 
which  gave  it  to  the  next  of  kin ;  and,  if  there  were  persons  of  ecjual  kin, 
whichever  took  out  administration  first,  was  entitled  to  the  surplus.  The  statute 
of  distribution  was  made  to  prevent  this  injustice,  and  to  oblige  the  adminis- 
trator to  distribute.     In  those  cases,  where  the  wife  was  entitled  only  to  the 
trust  of  a  chattel  real,  or  to  any  chose  in  action,  or  contingent  interest  in  any 
kind  of  personalty,  it  seems  to  have  been  doubted,  whether,  if  the  husband 
survived  her,  he  was  entitled  to  the  benefit  of  it  or  not.     See  the  commentary  on 
sect.  665.  and  4  Inst.  87.  1  Roll.  Abr.  346.  All.  15.  Wytham  v.  Waterhouse, 
Cro.  Eliz.  466.    3  Rep.  in  Cha.  37.  and  Gilb.  Ca.  in  Eq.  234.    By  the  22  and 
23  Car.  II.  c.  10,  administrators  are  liable  to  make  distribution ;  but  as  the  act 
makes  no  express   mention  of  the  husband's  administering  to  his  wife,  and  as 
DO  person  can  be  in  equal  degree  to  the  wife  with  the  husband,  he  was  not 
held  to  be  within  the  act.     To  obviate  all  doubts  upon  this  question,  by  the 
29  Car.  II.  o.  3.  §  25,  it  is  declared  that  the  husband  may  demand  adminis- 
tration of  his  deceased  wife's  personal  estate,  and  recover  and  enjoy  the  same, 
as  he  might  have  done  before  the  statute  of  the  22  and  23  of  that  reign.  Upon 
the  construction  of  these  statutes  it  has  been  held,  that  the  husband  may  ad- 
minister to  his  deceased  wife,  and  that  he  is  entitled  for  his  own  benefit  to  all 
her  chattels  real,  things  in  action,  trusts,  and  every  other  species  of  personal 
property,  whether  actually  vested  in  her  and  reduced  into  possession,  or  contin- 
gent or  recoverable  only  by  action  or  suit.     It  was  however  made  a  question, 
after  the  statute  of  29  Car.  II.  c.  3.  §  25,  whether,  if  the  husband,  having  sur- 
vived his  wife,  afterwards  died  during  the  suspense  of  the  contingency  upon 
which  any  part  of  his  wife's  property  depended,  or  without  having  reduced  into 
possession  such  of  her  property  as  lay  in  action  or  suit,  his  representative,  or  his 
wife's  next  of  kin,  were  entitled  to  the  benefit  of  it.     But,  by  a  scries  of  cases 
it  is  now  settled,  that  the  representative  of  the  husband  is  entitled  as  much  to 
this  species  of  his  wife's  property,  as  to  any  other;  that  the  right  of  administra- 
tion follows  the  right  of  the  estate,  and  ought,  in  case  of  the  husband's  death 
after  the  wife,  to  be  granted  to  the  next  of  kin  of  the  husband  (see  Mr.  Har- 
graves  Law  Tracts,  475);  and  if  administration  <lc  bonis  non  of  the  wife  is 
obtained  by  any  third  person,  he  is  a  trustee  for  the  representative  of  the  hus- 
band.    See  Squib  v.  Wyn,  1  P.  W.  378.     Cart  v.  Rees,  cited  ib.  381. 

II.  With  respect  such  part  of  the  icifcs  personalty  as  is  not  in  her  possession  ; 
as  money  owing  or  bc(iucathed  to  her,  or  accrued  to  her  in  case  of  intestacy,^  or 
contingent  interests,  these  are  a  qualified  gift  by  law  to  the  husband,  on  condition 
that  he  reduce  them  into  possession  during  the  coverture  j  for  if  he  happen  to 

die 


351.  a.]  Of  Eemitter.      L.  3.  C.  12.  Sect.  m5. 

appearctli  here  by  Littleton,  that  if  a  mau  taketh  to  wife  a  woman 
[/]  13  II.  4.  6.  seised  in  fee,  [/]  he  gaincth  by  the  intermarriage  an  estate  of 
Staunf.  1.  7.  b.  freehold  in  her  right,  which  estate  is  sufficient  to  worke  a  ro- 
ll H  8  19  mitter,  and  yet  the  estate  which  the  husband  gaineth  dependeth 
ioiL6.li.  upon 

7.  H.  6.  9.  b.     Vide  Sect.  58, 

die  in  the  lifetime  of  his  wife,  without  reducing  such  property  into  possession, 
she  and  not  his  representatives  will  be  entitled  to  it.  Roll.  Abr.  342.  350. 
Moor.  452.  Gold.  160.  2  Vent.  141.  His  disposing  of  it  to  another  is  the  same 
as  reducing  it  into  his  own  possession.  Thus,  if  a  baron  be  possessed  of  a 
term,  or  the  trust  of  a  term  in  the  right  of  his  wife,  he  may  dispose  of  it,  except 
in  the  case  of  a  trust  term,  where  the  trust  is  created  by  herself  previously  to 
the  marriage  :  and  it  should  seem  that  the  husband's  power  of  disposition  over 
his  wife's  contingent  personal  estate  can  extend  only  to  such  part  as  he  may 
possibly  become  possessed  of  during  the  marriage,  and  not  to  any  part  of  her 
estate  which  depends  upon  a  contingency  that  cannot  possibly  happen  during 
his  life ;  as  if  a  lease  be  made  to  the  husband  and  wife  during  their  lives,  with 
remainder  to  the  survivor,  and  the  husband  disposes  of  the  term  and  dies, 
the  disposition  will  not  bar  the  wife ;  for  during  the  coverture  she  had  a 
mere  possibility  only.  Ant.  46.  b.  1  Roll.  Abr.  843.  pi.  15.  Lane,  54,  55. 
Ch.  Ca.  225.  Vein.  7.18.  2Vern.270.  Eq.  Ca.  Ab.  58.  Pre.  Ch.  519.  1  Roll. 
Ab.  344.  2  Roll.  Abr.  48.  Poph.  5.  4  Leon.  185.  Godb.  139.  Cro.  Eliz.  841. 
Hutt.  17. 

This  interest  of  the  husband  in,  and  his  authority  over,  the  personal  estate 
of  the  wife,  is  however,  considerably  modified  by  equity,  in  some  particular 
circumstances.  A  settlement  made  upon  the  wife  in  contemplation  of  mar- 
riage and  in  consideration  of  her  fortune,  will  entitle  the  representatives  of  the 
husband,  though  he  die  before  the  wife,  to  the  whole  of  her  goods  and  chattels, 
whether  reduced  into  possession  or  not  during  the  coverture.  Gilb.  Eq.  Rep. 
100  J  but  it  seems  to  be  the  better  opinion,  that,  in  cases  where  the  provision 
for  the  wife  is  not  made  in  consideration  of  her  fortune,  or  is  made  in  considera- 
tion of  a  particular  part  only  of  it,  the  husband  will  not  in  the  first  case,  be 
entitled  to  the  wife's  choses  in  action,  unless  he  survive  her;  and  in  the  second, 
to  no  more  than  is  comprised  in  the  contract.  Pre.  Ch.  03.  Amb.  692.  2 
Ves.  jun.  607.  2  Ves.  sen.  676.  But  it  seems  doubtful  whether  a  settlement 
made  after  marriage  will  not  entitle  the  representatives  of  the  husband  to  such 
an  estate  in  preference  to  the  wife.     See  Lanoy  v.  duke  and  dutchess  of  Athol, 

2  Atk.  444  ;  and  see  4  Ves.  jun.  15^ 

III.  If  the  husband  be  obliged  to  resort  to  a  court  of  equity,  to  recover  the 
choses  in  action  of  the  wife,  or  any  property  which  he  cannot  recover  without 
the  assistance  of  the  wife,  the  court  will  not  interfere  unless  he  will  submit  to 
dispense  equity  before  it  be  administered  to  him ;  or,  in  other  words,  equity 
will  not  act  on  his  behalf,  unless  he  submit  to  make  a  competent  settlement  on 
his  wife,  when  no  settlement  has  been  made;  but,  if  the  wife  consent  in  court, 
or  being  abroad,  before  proper  commissioners  there,  that  the  husband  shall  re- 
ceive her  fortune,  he  will  be  ordered  payment  of  it  accordingly.  2  P.  Will.  641. 

3  P.  Will.  12.  202.  2  Atk.  67.  2  P.  Will.  638.  2  Ves.  sen.  60.  2  Bro.  C.  C. 
663.  3  Bro.  C.  C.  195.  But  see  ex  parte  Higham,  2  Ves.  sen.  579.  The  equity 
of  the  wife  to  compel  the  husband  to  make  a  settlement  is  merely  personal ;  so 
that  if  he  survive  his  wife,  the  children,  though  unprovided  for  by  settlement, 
cannot  oblige  them  to  make  provision  for  them  out  of  it.  Amb.  509 ;  and  ex- 
cept in  a  strong  case  of  the  husband's  misbehaviour,  as  in  8  Atk.  21,  and  Like 
V.  Beresford,  3  Ves.  jun.  500.  a  court  of  equity  will  not  interfere  with  the 
husband's  right  to  receive  the  income  during  the  coverture,  though  the  wife 
resist  the  application,  2  Ves.  sen.  562.  4  Ves.  jun.  15.  20.  798. 

IV.  Whether  the  wife's  equ ity  kUI  prevail  aga in&t  the  assiynce  of  the  husband 

for 


L.  3.  C.  12.  S.  m5.     Of  Kemitter.  [351.  a. 

upon  uncertaintie,  and  consistcth  in  privitie  [,7];  for  if  the  wife 
be  attainted  of  felony,  the  lord  by  escheat  shall  enter  and  put  out  5^1*o''^^f'  ^'A*^ 
the  husband:  otherwise  it  is  if  the  fclnnie  be  eomniitted  after  (^  liep.  50.  a. 
issue  had.  Also,  if  the  husband  be  attainted  of  felonie,  the  king  1  Roll.  Abr. 
gaineth  no  freehold,  but  a  pcrnancie  of  the  profits  during  the  ?*i5'  ^'^'^• 
coverture,  and  the  freehold  remaineth  iu  the  wife.   [A]  Secondly,  Ho1>!'285.*) 
if  she  were  possessed  of  a  ternie  for  ycares,  yet  he  is  possessed  in  [h]  Pi.  Com. 
her  right :  but  he  hath  power  to  dispose  thereof  by  grant  or  de-  ^'-  260  b. 

1  -J?  I      1  ii  1  i.    •    ^    ^     xi  -p.     •      1  Daine  Hale's 

uuse ;  and  it  he  be  outlawed  or  attainten,  they  are  gilts  in  law.  g^gg   50  ^gg_  5^ 
38  H.  6.  23.    21  E.  4.  35.     7  E.  4.  6.     7  H.  7.  2.     10  H.  6.  11. 

Upon 

for  a  valuable  consideration,  has  been  a  subject  of  frequent  discussion;  see 
1  P.  Will.  459.  Mr.  Cox's  note.  One  of  the  last  cases  on  this  point  is  Macaulay 
V.  Philips,  4  Ves.  jun.  19.  in  which  the  Master  of  the  Rolls  thus  expressed 
himself:  ''Many  cases  upon  this  point  have  been  before  me,  which  have  put 
"  lue  under  the  necessity  of  considering  very  much  the  right  of  the  wife  ;  and 
"  I  am  clearly  of  opinion,  the  doubt  respecting  the  assignment  of  the  husband, 
"  for  valuable  consideration,  of  the  wife's  equitable  interest,  was  not  well 
"  founded,  with  the  single  exception,  perhaps,  of  a  trust  of  a  term  for  years 
"  of  land,  upon  which,  perhaps,  there  may  be  some  doubt;  but  subject  to  that, 
''  I  am  clearly  of  opinion,  an  assignment  for  valuable  consideration  will  not 
"bar  the  equity  of  the  wife;  and  it  would  be  strange  if  it  did,  since,  in  the 
"  courts  of  law,  with  regard  to  an  action  brought  against  executors  by  the 
''.husband  for  a  legacy  due  to  his  wife,  it  is  determined,  that  an  action  does 
"  not  lie,  and  the  reason  given  is,  that  it  would  totally  defeat  the  wife's  equity. 
"  It  would  be  whimsical  then  that  the  assignment  by  the  husband,  for  valu- 
"  able  consideration,  should  put  that  assignee  in  equity  in  a  better  situation 
"  than  the  husband  himself  is  at  law.  The  guard  of  this  court  upon  the  wife's 
"  interest,  would  be  very  singular,  if  the  husband,  not  being  entitled  at  law, 
"  might  assign  it  for  a  valuable  consideration  to  another  person,  who  would  be 
"  entitled  in  equity.  I  am  clearly  of  opinion,  it  was  only  a  doubt,  and  it  never 
"  was  decided  that  the  husband  could,  by  such  assignment,  or  any  other  means, 
"  deprive  her  of  her  equity."  See  also  note  5  Ves.  517.  Mr.  Roper,  to  whose 
useful  " Treatise  on  the  Revocation  and  Republication  of  Wilts  and  Testaments; 
"  together  with  Tracts  vjjon  the  laiv  concerning  Baron  and  Feme,"  the  editor  is 
indebted  for  a  considerable  part  of  the  present  note,  observes,  that  the  reason 
why  the  trust  of  a  term  is  probably  made  an  exception  to  the  rule,  depends 
upon  the  disposition  of  such  a  term  being  good  at  law,  and  in  order  to  preserve 
an  unity  of  decision,  in  both  tribunals;  and  that  for  the  same  reason  it  seems 
that  an  assignment  by  the  husband  of  his  wife's  mortgage  term  will  bind  her. 

Assignees  in  law  are  bound  by  this  equity  of  the  wife  to  have  a  settlement 
made  for  her  benefit.  The  principal  cases,  in  which  the  doctrine  has  come 
into  consideration,  have  arisen  in  consequence  of  the  husband's  bankruptcy, 
and  are  systematically  arranged  and  ably  discussed  by  Mr.  Montagu  in  his 
Digest  of  the  Bankrupt  Laws,  1  vol.  199.  The  result  of  them,  in  his  words, 
is,  that  "  the  wife's  property  which  vests  in  the  husband  by  operation  of  law, 
"  and  of  which  the  assignees  under  a  commission  of  bankruptcy  against  the 
"  husband  can  obtain  possession  only  by  the  intervention  of  a  court  of  equity, 
"  or  of  an  ecclesiastical  court,  is  not  distributable  under  the  commission,  till 
"  there  is  a  suificient  settlement  upon  the  wife  out  of  this  or  some  other  fund  : 
"  — but  whether  property  which  the  assignee  can  recover  at  law,  is  subject  to 
"  a  provision  for  the  wife,  seems  not  to  be  finally  settled.  The  extent  of  the 
"  provision  is  either  left  to  the  liberality  of  the  creditors,  or  determined  upon 
"  a  reference  to  the  Master,  or  fixed  by  the  Chancellor." 

V.  From  what  has  been  stated  it  appears  to  have  been  settled,  that,  where  a 
settlement  of  personal  estate,  exccjit  chattels  real,  is  executed  before  marriage,  and 
contains  an  express  stipulation  that  the  icoman,  on  the  event  of  her  surviving  her 

husband f 


351.  a.J  Of  Kemitter.     L.  3.  C.  12.  Sect.  665. 

[*]  Mich.  26  &  [*]  Upon  an  execution  against  the  husband  for  his  debt,  the 
27  Eliz.  inter  sheriiFe  may  sell  the  terme  during  her  life  ;  but  the  husband  can 
Amnor  &  Lod-  jj^^^q  j^q  disposition  thereof  by  his  last  will.  Also,  if  he  make 
dlferror'adjudge  no  disposition  or  forfeiture  of  it  in  his  life,  yet  it  is  a  gift  in  law 
in  both  courts,  unto  him  if  he  doe  survive  his  wife ;  but  if  he  make  no  disposi- 
M.'''  \^'^^'  ^^''  ^^on,  and  die  before  his  wife,  she  shall  have  it  againe.  And  the 
case.  ^  same  law  is  of  estates  by  statute  merchant,  statute  staple,  elegit, 

wardships,  and  other  chattels  reals  in  possession. 

1  H.  6.  fol.  2.  But  if  the  husband  charge  the  chattell  reall  of  his  wife,  it 

llfi^°'^'  ^^^        ^'^^^^  ^°*  binde  the  wife  if  shee  survive  him. 

Vide  Sect.  58.  I^  ^  feme  sole  be  possessed  of  a  chattel  reall,  and  be  thereof 

dispossessed,  and  then  taketh  husband,  and  the  wife  dieth,  and 

the  husband  surviveth,  this  right  is  not  given  to  the  husband  by 

the  intermarriage,  but  the  executors  or  administrators  of  the  wife 

shall  have  it ;  so  it  is  if  the  wife  hath  but  a  possibilitie. 

PI.  Com.  fo.  294,       In  the  same  manner  it  is  if  the  wife  be  possessed  of  chattels 

Osborne's  case,    j-g^ls  671  aider  droit,  as  executrix  or  administratrix,  or  as  gardeine 

192.  b!''wro'tes-    ^^  socage,  &c.  and  she  intermarrieth,  the  law  maketh  no  gift  of 

ley's  case.  them  to  the  husband,  although  he  surviveth  her.     In  the  same 

manner  if  a  woman  grant  a  terme  to  her  own  use,  taketh  husband, 

and  dieth,  the  husband  surviving  shall  not  have  this  trust,  but 

p"]  Pase.  32  El.    tjjg  executors  or  administrators  of  the  wife  [i] ;  for  it  consisteth 

in  Witham'-s'       ^^   privitie  :   and  so   hath   it  beene  resolved  by   the  justices. 

case.     Hil.  38  Eliz.  in  Cancell.  in  Waterhouse's  case.     Wrotesley's  case,  ubi  sup. 

Chattels 

husband,  shall  have  the  absolute  property,  or  shall  have  the  income  of  it  during 
her  life,  no  deed  executed  by  the  woman,  either  alone  or  jointly  with  her  husband, 
during  their  joint  lives,  can  transfer,  charge,  or  in  any  manner  affect  her  con- 
tingent right  to  the  property  or  income  by  survivorship. — It  then  became  a 
question,  whether  in  a  suit,  to  which  the  husband  and  wife  were  parties,  a 
court  of  equity,  with  the  consent  of  the  wife,  upon  examination,  would  direct 
a  transfer,  or  otherwise  sanction  any  disposition  of  such  her  contingent  pro- 
perty. In  several  cases,  particularly  Fraser  v.  Baillie,  1  Bro.  Ch.  Ca.  518. 
Sperling  v.  Rochfort,  8  Ves.  164.  Chesslyn  v.  Smith,  ib.  183.  Richards 
V.  Chambers,  10  Ves.  580.  and  Lee  v.  Muggeridge,  1  Ves.  &  Beames,  118. 
it  seems  now  to  be  settled  that  the  court  will  not,  in  such  a  case,  direct  such 
a  transfer,  or  sanction  such  a  disposition.  It  should,  however,  be  borne  in 
mind,  that  a  wife's  vested  or  contingent  interest  in  a  real  estate,  or  chattels 
real,  is,  during  the  joint  lives  of  herself  and  her  husband,  always  subject  to  the 
operation  of  their  fine. 

VI. — It  remains  to  state  some  of  the  general  rules  of  equity  respecting  dis- 
positions  by  a  married  woman  of  her  separate  estate.  Speaking  generally,  it 
may  be  laid  down,  1st.  That,  except  in  particular  cases,  a  court  of  equity  will 
decree  a  conveyance  or  assignment  of  a  woman's  separate  estate,  either  to  her 
husband  or  a  stranger,  on«a  bill  filed  for  such  purpose  by  the  husband  and 
wife ;  Allen  v.  Papworth,  1  Ves.  sen.  163  ;  Clarke  v.  Pistor,  cited  3  Bro.  Ch. 
Ca.  346 ;  Ellis  v.  Atkinson,  3  Bro.  Ch.  Ca.  565.  2dly,  That  a  married  woman 
may  dispose  by  anticipation  of  her  separate  estate,  though  it  be  for  her  life 
only,  unless  the  anticipation  be  prohibited  in  the  deed  creating  the  trust, 
Grigby  v.  Cox,  1  Ves.  sen.  517;  Hulme  v.  Tenant,  1  Bro.  Ch.  Ca.  16  ;  Pybus 
V.  Smith,  3  Bro.  Ch.  Ca.  340;  Burnaby  v.  Griffin,  3  Ves.  266;  Wagstaff  v. 
Smith,  9  Ves.  520;  Parkes  v.  White,  11  Ves.  209;  and  Witts"  i^.  Dawkins, 
12  Ves.  501.  And  3dly,  That  where  it  appears  by  the  instrument  creating 
the  trust  to  have  been  the  intention  of  the  parties,  that  the  woman  should  not 
have  the  power  of  disposing  of  her  separate  income  by  anticipation,  the  court 
will  not  allow  it.  Sockett  v.  Wray,  4  Bro.  Ch.  Ca.  485;  Whi.stler  v.  Newman^ 
4  Ves.  129;  Mores  v.  Huish,  5  Ves.  692;  Hovey  v.  Blakeman,  cited  in 
Wagstaff  v.  Smith,  9  Ves.  524.— [Note  304.] 


L.  3.  C.  12.  Sect.  665.     Of  Remitter.      fSol.  a.  351.  b. 

Chattels  reals  consisting  meerely  in  action  the  husband  shall 
not  have  by  the  intermarriage,  unless  he  recovereth  them  in  the 
life  of  the  wife,  albeit  he  survive  the  wife ;  as  a  writ  of  right 
of  ward,  a  valore  maritagli,  a  forfeiture  of  marriage  and  the 
like,  whereunto  the  wife  was  entitled  before  the  marriage. 

But  chattels  reals  being  of  a  mixt  nature,  viz.  partly  in  pos-  1.3  e.3. 
session,  and  partly  in  action,  which  happen  during  the  cover-  Quar.  Imp.  57. 
ture,  the  husband  shall  have  by  the  intermarriage,  if  hee  survive  gg  E's'Il'h. 
his  wife,  albeit  he  reduceth  them  not  into  possession  in  her  life-  50  e.  3. 13.  * 
time ;  but  if  the  wife  surviveth  him  she  shall  have  them.     As  if  10  II.  6.  11. 
the  husband  be  seised  of  a  rent  service,  charge,  or  seek,  in  the  ^^  h.  e'  26^* 
right  of  his  wife,  the  rent  become  due  during  the  coverture,  the  99  E.'s.'  4o'. 
wife  dieth,  the  husband  shall  have  the  arerages ;  but  if  the  wife  11  R.  2. 
survive  the  husband  she  shall  have  them,  and  not  the  executors  ^g'^^'""*'  ^^* 
of  the  husband.     So  it  is  of  an  advowson,  if  the  church  become  Briefe,*639. 
voyd  during  the  coverture  [k]  he  may  have  a  giiare  imjiedit  in  5  E.  3. 
his  owne  name,  as  some  holdj  but  the  wife  shall  have  it  if  she  ^^'j^^g'-j.^g  ^3 
survive  him ;  and  the  husband  if  he  survive  her :  et  sic  de  similibus.  2iu.  6. 9. 

7H.'7.  2.' 

[351. T     B^"But  if  the  arerages  had  become  due,  or  the  26  E.  3.  64. 
b.     J  church  had  fallen  voyd  before  the  marriage,  there  they  10  H.^.  ih 
were   meerely  in  action  before  the  marriage  ;   and  ^2  h.  6.  25. 
therefore  the  husband  should  not  have  them  by  the  common  law, 
although  he  survived  her.    And  so  it  is  of  releefes,  mutatis  mu- 
tandis.    {r\  But  now  by  the  statute  of  32  E.  8.  cap.  37,  if  the  [q  Lib.  4.  fol. 
husband  survive  the  wife,  he  shall  have  the  arerages  as  well  in-  51,  in  Ongei's 
curred  before  the  marriage,  as  after.  17  Ei.  Rot.  457. 

But  the  marriage  is  an  absolute  gift  of  all  chattels  personals  in  Com.  Banco, 
in  possession  in  her  owne  right,  whether  the  husband  survive  the  Sharp's  case, 
wife  or  no  ;  but  if  they  be  in  action,  as  debts  by  obligation,  con-  ^J  h/7,*29. 
tract,  or  otherwise,  the  husband  shall  not  have  them  unlesse  he  n  h!  7!  4.  * 
and  his  wife  recover  them.     And  of  personall  goods,  en  auter  26  H.  8.  7. 
droit,  as  executrix  or  administratrix,  &c.  the  marriage  is  no  gift  l^-^'l'2^'^^^ 
of  them  to  the  husband,  although  he  survive  his  wife  (1).  4  h.'  &'.  b.' 

14  E.  2.  Det.  73. 
5  E.  2.  ibid.  169.     30  E.  3.     48  E.  3. 12.     12  R.  2.  Bre.  638,  639.     16  E.  4.  8.     16  H. 
6.  Bre.  939. 
(m)  If  an  estray  happen  within  the  mannor  of  the  wife,  if  [m]  43  E.  3.  8.V. 
the  husband  die  before  seizure,  the  wife  shall  have  it,  for  that  10  H-  ^6.  n. 
the  property  was  not  in  the  wife  before  seisure. 

But  as  to  personall  goods,  there  is  a  diversitie  worthy  of 
observation  betwcene  a  propertie  in  personal  goods  (as  is  afore- 
said) and  a  bare  possession ;  for  if  personall  goods  be  bailed  to 
a  feme,  or  if  she  finde  goods,  or  if  goods  come  to  her  hands  as 
executrix  to  a  bailiffe,  and  taketh  a  husband,  this  bare  possession 
is  not  given  to  the  husband,  but  the  action  of  detinue  must  be 
brought  against  the  husband  and  wife. 
But  now  let  us  hcare  Littleton. 

"  Whicli  slionJd  he  inconoenient."     This  argument  a  &  tnco?i-  Vide  Sect.  87, 
venienti,  our  author  hath  used  in  many  places  (A).      .  ^^- 

Sect. 

(A)  As  to  the  limited  force  of  the  anjtment,  see  ante,  note  1  to  66.  a. 


(1)  But  they  shall  go  to  the  administrator  de  bonis  nan  :  for  should  they  go 
to  the  husband,  the  creditors,  legatees,  &c.  of  the  deceased  would  be  thereby 
Pronged.     A^otc  to  II (h  edition . — [Note  305.] 


351.  b.  352.  a.]     Of  Eemitter.     L.  3.  C.  12.  Sect.  666-67. 


(Ant.  350.  b.)  Sect.  666. 

A  LSO,  if  a  woman  seised  of  certaine  land  in  fee  taketh  husband,  who 
alieneth  the  same  land  to  another  in  fee,  *  the  alienee  letteth  the  same 
land  to  the  husband  and  wife  for  terme  of  their  tivo  lives,  saving  the 
reversion  to  the  lessor  and  to  his  heires  ;  in  this  case  the  wife  is  in  her 
remitter,  and  she  is  seised  in  deed  in  her  demesne  as  of  fee,  as  shee  was ' 
before,  because  the  taking  backc  of  the  estate  shall  be  adjudged  in  law 
the  fact  of  the  husband,  and  not  the  fact  of  the  wife  ;  so  no  folly  can  be 
adjudged  in  the  ivife,  which  is  covert  in  such  case.  And  in  this  case  the 
lessor  hath  nothing  in  the  reversion  (Et  en  cest  case  le  lessor  n'ad  t  rien 
en  le  reversion), /o;*  that  the  ivife  is  seised  in  fee,  %  ^^« 

21  E.  3.  26.  "  rpHE  wife  is  in  her  remitter."  By  this  it  appeareth,  that 
41  E  3  ^^*  albeit  there  be  no  moities  betweene  husband  and  wife,  yet 

Remit.  11.  this  is  a  remitter  presently,  and  standeth  not  upon  the  survivor 

19  E.  3.  of  the  wife,  as  some  have  thought :  for  if  the  estate  gained  by 

?5^A«^\**  intermarriage  be  a  sufficient  estate  to  work  a  remitter;  dfur- 

38  E.k  24.  tiori,  an  estate  made  to   the  husband  and  wife   shall  worke  a 

39  E.  3.  29,30.  remitter  in  the  wife.  And  so  it  is  if  the  tenant  in  taile  infeoffe  his 
aIw's'U  h  ^^^"^  being  within  age,  and  his  wife  in  fee,  and  dieth;  this  is  a 
26  e".  3.  69!  '  remitter  to  the  issue  presently,  by  the  death  of  tenant  in  taile  ; 
Vide  Sect.  676.  though  some  have  thought  the  coutrarie. 

11  R.  2.  Remit. 

The  Marques  of  ^^°  ^^^®  ^^^°  ^*  appeareth,  that  no  follie  in  this  ["352.1 
"VVinch.  case,  case  can  be  adjudged  in  a  feme  covert,  for  the  taking  L  ^-  J 
ubi  sup.  backe  of  the  estate  shall  be  adjudged  in  law  the  act  of 

(Hob.  71.)  ^i^g  husband. 

Note  in  the  case  of  the  feme  covert,  she  may  be  remitted  in 
the  life  of  the  discontinuor,  because  she  hath  a  present  right: 
but  in  the  case  of  tenant  in  taile,  the  issue  cannot  be  remitted 
in  the  life  of  the  discontinuor,  because  the  issue  hath  no  right 
untill  his  decease. 


Sect.  667. 

Z?  UT  in  this  case  if  the  lessor  will  sue  an  action  of  wast  against  the 
husband  and  his  wife,  for  that  the  husband  hath  committed  wast,  the 
husband  cannot  barre  the  lessor  by  shelving  this,  that  the  taking  backe  of 
the  estate  to  him  and  to  his  ivife  ivas  a  remitter  to  his  ivife,  because  the 
husband  is  stopped  to  say  that  which  is  against  his  owne  feoff ement  (pur 
ceo  que  le  baron  est  estoppe  a  dire  ceo  §  que  est  encounter  son  feoff- 
ment), and  taking  backe  of  the  estate  for  terme  of  life  to  him  and  to  his 
wife.  And  yet  the  lessor  hath  no  reversion  (Et  uncore  le  lessor  n'ad  f  un 

reversion), 

*  and  added  in  L.  and  M.  and  Roh.         I  dx.  not  in  L.  and  M.  or  Roh. 
t  ascun  added  in  L.  and  M.   and  §  que  est  not  in  L.und  M.  or  Roh. 

Roll.  fun — n\x\\L.  and  Maud  Roh.     • 


L.  3.  C.  12.  Sect.  667.       Of  Kemitter.        [352.  a.  352.  b. 

reversion), /or  that  the  fee  simple  is  in  the  loife.  And  so  a  man  may  see 
one  thing  in  this  case,  that  a  man  shall  bee  stopped  by  matter  in  fact, 
though  there  bee  no  writing  by  deed  indented,  or  otherwise. 

"  'DECAUSE  the  husband  is  stopped  to  say  (pur  ceo  que  le  Li.  2. f.4. b. 
^  baroQ  est  estoppe  a  dire),  &c.  Y°stct'^4iT''' 

"  Estoppe,"  commeth  of  the  Frencli  word  cstoupe,  from  whence  n'ost!^563!'b.") 
the  English  word  stopped :  and  it  is  called  an  estoppel  or  con- 
clusion, because  a  man's  owne  act  or  acceptance  stoppeth  or 
closeth  up  his  mouth  to  allcage  or  plead  the  truth  :  and  Little- 
ton's case  here  proveth  this  description. 

Touching  estoppels,  which  is  an  excellent  and  curious  kinds 
of  learning,  it  is  to  be   observed,  that  there  be  three  kinde  of  (Cro.  Car.  388. 
estoppels,  viz.  by  matter  of  record,  by  matter  in  writing,  and  by  i  Roll.  Abr.  86».) 
matter  in  paiis. 

[a]  By  matter  of  record,  viz.  by  letters  patents,  fine,  recoverie,  [o]  43  Ass.  29. 
pleading,  taking  of  continuance,  confession,  imparlance,  warrant  22^a^s  54^ 
of  atturney,  admittance.  15  e.  3. 

Estop.  239.     4  E.  3.  ib.  133,     (1  Roll.  Abr.  862.) 

[h]  By  matter  in   writing,  as  by  deed  indented,  by  making  of  [b]i  H.  4. 1. 
an  acquittance  by  deed  indented  or  deed  poll,  [c]  by  defeasance  y}^^^'.^'2^ 
by  deed  indented  or  deed  poll.  ]5  e.*4.  28. 

41  E.  3.     Estop.  12.     12   R.  2.  ib.  212.     [c]  8  R.  2.  Estop.  283.     35  H.  6. 18. 
3  H.  6.  16.     16  H.  7.  5.     34  H.  6.  19.     14  II.  4.  29. 

By  matter  in  paiis,  as  by  Hverie,  by  entry,  by  acceptance  of 
rent,  by  partition,  and  by  acceptance  of  an  estate,  as  here  in  the 
case  that  Littleton  putteth ;  whereof  Littleton  maketh  a  speciall  (i  Leo.  82. 158. 
observation,  that  a  man  shall  be  estopped  by  matter  in  the  coun-  ^  Rep.  53. 

.,,     ',  -r       n\  8  Rep.  53,  54.) 

trey,  Without  any  writing  (1).  ^     '      ' 

To  make  the  reader  more  capable  of  the  learning  of  estoppels 
these  few  rules,  amongst  others,  are  to  be  knowne. 

[c/]  First,  that  every  estoppel  ought  to  be  reciproeall,  that  is,  [f/]  33  II.  G.  19. 
to  binde  both  parties;  and  this  is  the  reason,  that  regularly  a  ^"-    •^"  '*•  ''•  -• 
stranger  shall  neither  take  advantage,  nor  be  bound  by  the  cs-  Ei,top."240. 
toppel  :  [e]  privies  in  bloud,  as  the  heire ;  privies  in  estate,  as  33  Ass.  is. 
the  feoffee,  lessee,  &c.  ;  privies  in  law,  as  the  lords  by  escheat ;  30  Ass.  51. 
tenant  by  the  curtesie,  tenant  in  dower,  the  Jg®""  in-  j,^  j,.^"^'  \' 

t353."l  cumbent  of  a  benefice,  and  others  that  come  un'Qer  (3  Mod.  141.) 
b.     J  by  act  in  law,  or  in  the  post,  shall  be  bound  and  take  [c]  8  Ass.  53. 
advantage  of  estoppels ;  and  that  a  rebutter  is  a  kinde  ^'';,^p"''7l '' ''■ 
of  estoppell.  21  E.  3.  35. 

38  E.  3.  31.     20  E.  3.  Estop.  187. 

Secondly, 


(1)  The  reasons  why  estoppels  are  allowed,  seem  to  be  these  :  No  man  ought 
to  allege  any  thing  but  the  truth  for  his  defence,  and  what  he  has  alleged  once, 
is  to  be  presumed  true,  and  therefore  he  ought  not  to  contradict  it ;  for  as  it 
is  said  in  the  2  Inst.  272.  allegans  rontraria  non  est  audicmlus.  Secondly, 
as  the  law  cannot  be  known  till  the  facts  are  ascertained,  so  neither  can  the 
truth  of  them  be  found  out  by  evidence;  and  therefore  it  is  reasonable  that 
some  evidence  should  be  allowed  to  be  of  so  high  and  conclusive  a  nature,  as 
to  admit  of  no  contradictory  proof.     Note  the  lllh  edition. — [Note  800.] 


352.  b.]  Of  Remitter.        L.  3.  C.  12.  Sect.  667. 

r/'12lE.  4.  4.         [/]  Secondly,  that   every  estoppell,  because  it  concludeth   a 
23  Ass.  14.  man  to  alleadge  the  truth,  must  be  certaine  to  every  intent,  and 

17  H.  6.  mjt  to  be  taken  by  argument  or  inference  (B). 

Estop.  273.  JO  \    y 

18  E.  3.  30.    7  H.  7.  6.  &  16. 

[(/]46  E.  3.  33.         [(7]  Thirdly,  every  estoppell  ought  to  be  a  precise  affirmation 
29  Ass.  38.  Qf  {jjat  which  maketh  the  estoppell,  and  not  be  spoken  imper- 

Pl.  Com.       .       gonally  ;  as  if  it  be  said,  Ut  dicitur,  quia  imper&onalitas  non 
concludit,  nee  ligat :    impersonalls  dicitur ,  quia  sine  persona. 
n]  35  H.  6. 33.    [/i]  Neither  doth  a  recital!  conclude,  because  it  is  no  direct  affir- 
46  E.  3.  12.         mation. 

49  E  3.  14. 

8  Ass.  3.    45  Ass.  5.    3  El.  Dy.  196.    11  El.  ib.  280.    9  H.  6.  60. 

[]•]  5  E.  4. 7.  \i\  Fourthly,  a  matter  alleaged  that  is  neither  traversable  nor 

8  E.  4. 19.  materiall,  shall  not  estoppe. 

10  E.  4. 12.  '  ^^ 

22  E.  4.  38.     32  Ass.  9.     35  H.  6.  20. 

\k\  33  H.  6. 16.        [yt]  Fifthly,  regularly  a  man  shall  not  be  concluded  by  accept- 
4  E.  3.  22.  ^jjgg  Qy  j.]je  like,  before  the  title  accrued. 

31  E.  i.  Gard.  155.    F.  N.  B.  142.  E. 

[?]  12  H.  7.  4.  \r\  Sixthly,  estoppell  against  estoppell  doth  put  the  matter  at 

20  H.  6.  29.  i„„'^p 

3  H.  4.  9.  ^^"^Se- 

41  E.  3.  4.     11  H.  4.  30. 

[m]  2  R.  3. 14.  [m]  Seventhly,  matters  alleaged  by  way  of  supposall  in  counts 

2  R.  2.  shall  not  conclude  after  non-suit :  otherwise  it  is  after  judgment 

Estoppell,^20.  given ;  and  after  non-suit,  albeit  the  supposall  in  the  count  shall 

12  e!  4."  13.  not  conclude,  yet  the  barre,  title,  replication  or  other  pleading 

18  E.  3.  31.  35.  of  either  partie,  which  is  precisely  alleaged,  shall  conclude  after 

17  A«^  27^  non-suit;  and  hereby  are  the  bookes  reconciled. 
45  E.  3.  2.'    21  H.  7.  24.     5  E.  4.  7.     7  E.  4.  19.     3  E.  4.  11.     4  E.  3.  54.     7  E.  6. 

Br.  Estop.  162.  11  H.  4.  30.     30  E.  3.  21.     31  Ass.  14. 

Eighthly,  where  the  veritie  is  apparent  in  the  same  record, 
there  the  adverse  party  shall  not  be  estopped  to  take  advantage 
of   the  truth ;    for  he  cannot  be  estopped  to  alleage  the  truth, 
[)i]  37  Ass.  17.      when  the  truth  app'eareth  of  record,   [n]  If  a  fine  be  levied  with- 
38  H.  6. 12.         out  any  originall,  it  is  voydable,  but  not  void  ;  but  if  an   origi- 
5  El.  Dy.  222.      ^^jj  ^^  brought,  and  a  retraxit  entred,  and  after  that  a  concord 
is  made,  or  a  fine  levied,  this  is  void,  in  respect  the  veritie  ap- 
[o]  7  El.  Dy.        peareth  of  record,    [o]  An  impropriation  is  made  after  the  death 
244.  of  an  incumbent,  to  a  bishop  and  his  successors;  the  bishop  by 

indenture  demiseth  the  parsonage  for  fortie  yeares,  to  begin  after 
the  death  of  the  incumbent ;  the  deane  and  chapiter  confirmeth 
it,  the  incumbent  dieth ;  this  demise  shall  not  conclude,  for  that 
it  appeareth  that  he  had  nothing  in  the  impropriation  till  after 
the  death  of  the  incumbent. 
r«l  Brae  f  420  [p]  Ninthly,  where  the  record  of  the  estoppell  doth  run  to  the 
26  Ass.  64.  disabilitie  or  legitimation  of  the  person,  there  all  strangers  shall 

39  Ass.  10.  take  benefit  of  that  record ;  as  outlawrie,  excommengement,  pro- 

y  jj  g  ^    "         fession,  attainder  of  praemunire,  of  felouie,  &c.  bastardie,  mu- 
33  Ass.  5.  liertie,  and  shall  conclude  the  partie,  though   they  be  strangers 

11  E.  3.  to  the  record.    Vide  in  Littleton,  cap.  Villenage,  Sect.  196, 197, 

21  E^3^39"  ^^-     ^^^  °^  ^  record  concerning  the  name  of  the  person,  qua- 

19  R.  2.  Estop.  282.     3  E.  3.  ib.  23.     33  E.  3.  Estop.  Stath.     Le  stat.  de  9  11.  6.  ca.  11. 
30  H.  6.  2.     Doct.  &  Stud.  69.    34  H.  6.  39.    18  E.  4.  1.  b.     10  E.  4.  16. 

litie, 

(B)  Vid.  ante  303.  a.  and  the  note  under  (A)  there. 


L.  3.  C.  12.  Sect.  668-69.    Of  Eemitter.    [3o2.  b.  353.  a. 

litie,  or  addition,  bo  estranger  shall  take  advantage,  because  he 
shall  not  be  bound  by  it.  But  nofa,  reader,  that  in  case  of  the 
muliertie  j^rima  facie,  an  estranger  shall  take  benefit  of  it,  &c. 
But  yet  because  he  may  be  a  muUer  by  the  ecclesiastical  law, 
and  a  bastard  by  the  conunon  law,  therefore  against  such  a  cer- 
tificate pleaded,  the  adverse  partie  may  allege  the  speeiall  mat- 
ter, and  confesse  the  certificate  of  the  bi^hnp  according  to  the 
ecclcsiasticall  law,  and  alleage  further  the  speeiall  matter  accord- 
ing to  the  common  law,  whereunto  the  adverse  partie  must 
answer;  and  so  are  the  books  that  treat  of  this  matter  to  be  re- 
conciled (1).     But  now  let  us  rcturne  to  Littleton. 


Sect.  668. 

J^^T  if  in  the  action  of  wast  the  husband  make  default  to  the  grand 
distresse,  and  the  zvife  p7'ai/  to  he  7'eceived.  and  is  received,  shee  may 
well  sheio  the  whole  matter,  and  hoiv  shee  is  in  her  remitter,  and  shee 
shall  barre  the  lessor  of  his  action,  *  ^c. 

"■  ^  HE  loife  pray  to  be  received,  and  is  received."     Receipt,  (Ant.  192.  b.) 

recpptio,  commeth  of  the  Latino  verbe  recipere,  so  called 
because  the  wife,  upon  the  default  of  her  husband,  is  received  as 
a  feme  sole  alone,  without  her  husband,  to  defend  her  right;  and  20  E.  1. 
it  is  also  called  dcfcnsio  juris ;  and  in  this  case  the  wife  may  bee  Defensio  juris, 
received  by  the  [n]  statute  :  and  yet  [A]  ancient  authors  who  [„]  -vv.  2.  ca.  3. 
wrote  before  the  statute,  doe  speake  of  a  kind  of  receit  at  the  [*!']  Bract,  f.  .S93. 
common  law.     The  civilians  call  resccit,  odmissionem  tertii  pn-o  ^f'^'-li'';  3-  cnp. 
sua  intcrcsse  which  more  properly  is  resembled  to  the  receipt  of 
him  in  the  reversion  or  remainder,  that  is  no  party  to  the  writ. 


353.-1  1^  Sect.  669, 


a. 


■] 


won  in  every  case  tvliere  the  wife  is  received  for  default  of  her  hus- 
band, she  shall  p)lcad  and  have  the  .same  advantage  in  pleading,  as 
shee  were  a  woman  sole,  §  (J^c.  And  albeit  that  the  alienee  made  the 
lease  to  the  husband  and  loife  by  deed  indented,  yet  this  is  a  remitter  to 
the  wife.  And  also,  albeit  the  alienee  rendreth  the  same  land  to  the 
husband  and  his  wife  by  fine  for  terme  of  their  lives,  yet  this  is  a  re- 
mitter to  the  wife,  because  a  feme  covert  which  takes  an  estate  by  fine, 
shall  not  be  examined  by  the  justices,  f  i'(^- 

"AS  shee  icere  a  ivoman  sole,  &c."     In   this   Section  foure 
things  are  to  be  understood. 
First,  when  a  feme  covert  is  received,  that  she  shall  plead  as  if 

she 

*  dr.  not  in  L.  and  M.  or  Eoh.  f  ^'^-  ^^^  ^^  ^-  ^^^  ^^-  °^'  ^^^^' 

§  d-c.  not  in  L.  and  M.  or  Boh. 


(1)  See  note  1  to  page  245.  a. 
Vol.  TT.— 41 


353.  a.  353.  b.]      Of  Remitter. 


L.  3.  C.  12.  Sect.  670. 


[c]  37  Ass.  1. 

17  Ass.  17. 
L'9  E.  3.  43. 
5  E.  3. 
Voucher,  178. 


(10  Rep.  43.) 


Trin.  27  Eliz. 
inter  Owen  & 
Jlorgan.  Rot. 
276.  in  banco 
commuui, 
Li.  3.  fol.  0.  the 
marquesse  of 
Winchester's 
case.  7  E.  3.  64. 
13  E.  1. 
Voucher,  119. 


(3  Rep.  5.  a.) 


she  were  sole.  And  this  is  regularly  true,  yet  holdeth  not  in  all 
cases  :  [c]  for  if  a  feme  covert  be  received  in  an  assise,  and  plead 
a  record  and  faile,  therefore  she  shall  not  be  adjudged  a  disseisor, 
as  shee  should  be  if  shee  were  sole,  kc.  So  if  a  feme  covert 
onely  levie  a  fine  executorie,  and  a  scire  facias  is  brought  against 
her  and  her  husband,  if  shee  be  received  upon  the  default  of  her 
husband,  shoe  shall  barre  the  conusee,  which  if  she  had  been 
sole,  she  could  not  doe,  and  in  some  other  cases. 

Secondly,  that  though  the  estate  taken  backe  be  by  deed,  in- 
dented, yet  that  shall  not  hinder  the  remitter  in  case  of  a  feme 
covert,  or  an  infant. 

Thirdly,  that  though  it  be  by  fine  siir  render,  yet  that  shall 
not  hinder  the  remitter:  because  a  feme  covert  is  not  to  be 
examined  upon  any  fine,  but  when  shee  and  her  husband  passe 
some  estate  or  interest,  or  release  her  right  by  a  fine  of  the  lands 
or  tenements. 

Fourthly,  if  the  husband  levie  a  fine  of  his  wife's  lands,  and 
the  conusee  grant  and  render  the  land  to  the  husband  and  wife, 
although  the  wife  be  not  partie  to  the  originall,  nor  to  the  conu- 
sans,  and  therefore  she  ought  not  by  the  law  to  take  any  present 
estate  but  by  way  of  remainder  only;  yet  here  it  is  proved  by 
Littleton  that  the  grant  and  render  de  facto  to  the  wife  in  pnt- 
senti  is  not  void;  for  then  it  could  not  worke  a  remitter,  but 
voidable  by  writ  of  error;  and  that  avoidable  estate  doth  worke 
a  remitter  (1). 

"  Shall  not  he  examined  hi/  the  justices,  &c."  The  examination 
of  a  feme  covert  ought  to  be  secret;  and  the  eflfect  is  to  examine 
her,  whether  shee  be  content  to  levie  a  fine  of  such  lands  (naming 
them  particularly  and  distinctly,  and  the  state  that  passeth  by 
the  fine)  of  her  owne  voluntary  free  will,  and  not  by  threats, 
menaces,  or  any  other  compulsorie  meanes. 


Sect.  670. 


/|iVZ>  here  note,  that  when  an//  thing  shall  passe  from  the 

wife  which  is  eovert  of  a  husband  by  "^^  force  of  a  fine :  ["353.  "I 
as  if  the  husband  and  wife  make  conusance  of  right  to  an-  L  b.  J 
other,  ^"c.  or  make  a  grant  and  render  to  another,  or  release 
hy  fine  unto  another,  et  sic  de  similibus,  ivhere  the  right  of  the  wife  shall 
jmsse  from  the  ivife  by  force  of  tlie  same  fine  ;  in  all  such  cases  the  wife 
shall  he  examined  before  that  the  fine  be  taken,  because  that  such  fines 
shall  conclude  such  femes  coverts  for  ever,  *  ^-c.  But  where  nothing  is 
moved  in  the  fine  but  onely  that  the  husband  and  wife  doe  take  an  estate 
hy  force  of  the  said  fine,  this  shall  not  conclude  the  wife  ;  for  that  in 
such  ease  she  shall  not  he  at  all  examined,  f  j|'c. 

"  WHEN 


*  &c.  not  in  L.  and  M.  or  Roh. 


f  &c.  not  in  L.  and  M.  or  Roh. 


(1)  V.  From  this  passage,  and  others  mentioned  both  by  Littleton  and 
Coke,  it  appears  to  be  a  general  rule,  that  tlic  remitter  shall  take  effect,  thoiKjh 
the  estate  which  made  the  remitter  is  voidable;  as  if  it  be  taken  from  an  infant,  a 
feme  covert,  or  upon  condition.  See  Com.  Dig.  tit.  Remitter,  B.  1. — [Note  307.] 


L.  3.  C:  12.  Sect.  671.  672.  Of  Remitter.  [353.  b.  3oi.  a. 

"  TJ/^IIEJV ani/  thinrj  shall  j)asse  from  the  xcifc  covert,  ctr.  hi/ 

^^  force  of  a  flic,  dx."     And  of  this  opinion  is  [r/]  Littleton  ['']  |-\E- 4.  28. 

in  our  bookes.  ^o  e  3  0 

[*]  Therefore  if  the  husband  and  wife  be  tenants  in  ppeciall  3  h.  6.  42. 

tayle,  and  they  levy  a  line  at  the   common   law,  and   after  the  20  E.  3.  tit. 

husband  and  wife  take  back  an  estate  to  them  and  their  heires ;  vli^^ii  e  3'  43' 

in  this  case  the  estate  tayle  is  not  barred ;  and  yet  against  a  fine  46  e.  3.  b. 

levied  by  hersclfe  she  cannot  be  remitted,  because  thereupon 

she  was  examined  :  but  in  that  case  if  the  land  descend  to  her 

issue,  he  shall  be  remitted  (1). 


Sect.  671. 

ALSO  if  tenant  in  taile  discontinue  the  taile,  and  hath  I  issue  a 
'^  daughter,  and  dieth,  and  the  daughter  being  of  full  age  taketh  hus- 
band, and  the  discontinuee  make  a  release  of  this  to  the  husband  and 
wife  for  terme  of  their  lives,  this  is  a  remitter  to  the  ivife,  and  the  wife 
is  in  by  force  of  the  taile,  causa  qua  supra,  ^c. 

."  J  iV^Z)  the  daughter  being  of  f nil  age  taketh  hnshand,  tfc." 
Here  it  appeareth,  that  her  full  age  when  she  tooke  baron 
is  not  materi:ill,  but  her  coverture  at  the  taking  backe  of  the 
estate.  And  so  note  a  diversitie  bctweene  a  remitter  and  a  dis- 
cent :  for  if  a  woman  be  disseised,  and  being  of  ful  age  taketh  (Ant.  216.) 
husband,  and  then  the  disseisor  dieth  seised,  this  discent  shall 
binde  the  wife,  albeit  she  was  covert  when  the  discent  was  cast, 
because  she  was  of  full  age  when  she  tooke  husband,  as  appeareth 
before  in  the  Chapter  of  Discents.  But  albeit  the  wife  that 
hath  an  ancient  right,  and  being  of  full  age,  taketh  a  husband, 
and  the  discontinuee  letteth  the  land  to  the  husband  and  wife 
for  their  lives,  this  is  a  remitter  to  the  wife,  for  remitters  to 
ancient  rights  are  favoured  in  law. 


[ 


854.1  «^  Sect.  672.  ("'^^•-'"■^ 


a. 


4  LSO  if  land  be  given  to  the  husband  and  to  his  wife,  to  have  and 
^  to  hold  to  them  and  to  the  heirs  of  their  two  bodies  begotten,  and  after 
the  husband  alien  the  land  in  fee,  and  take  backe  an  estate  to  him  and  to  his 

tvife 

I  issue  not  in  L.  and  M.  or  Rob. 


(1)  Since  Littleton  wrote,  several  statutes  have  been  passed,  which  have 
given  rise  to  a  great  extension  of  the  doctrine  respecting  alienations  by  hus- 
bands of  their  wives  estates.  These  are  chiefly  the  statutes  of  the  4  H.  7, 
respecting  the  force  and  effect  of  fines,  the  27  H.  8,  for  transferring  uses  into 
possession,  and  the  8*2  11.  S,  for  preserving  the  estates  of  wives  against  the 
alienations  of  their  husbands.  The  reader  will  find  the  effect  of  these  statutes 
upon  the  doctrine  of  remitter,  investigated  in  a  very  copious  and  masterly  man- 
ner in  lord  chief  justice  Hobart's  account  of  his  argument  on  giving  judgment 
in  the  case  of  Duncombc  v.  Wingficld.     See  his  Rep.  p.  254. — [Note  308.] 


354.  a.  354.  h.]      Of  Ecmitter.    L.  3.  C.  12.  Sect.  673. 

ivifefor  tenne  of  their  two  lives  ;  in  this  case  this  is  a  remitter  in  deed  to 
the  husband  and  to  his  wife  mauger  the  husband.  For  it  cannot  be  a 
remitter  in  this  case  to  the  wife,  unlesse  it  be  a  remitter  to  the  husband, 
because  the  husband  and  wife  are  all  one  same  person  iri  laio,  though  the 
husband  be  stojyped  to  claim  it.  *  And  therefore  this  is  a  remitter  against 
his  owne  alienation  and  reprisel,  as  is  said  before  f. 

HERE  it  appeareth,  tliat  tlie  husband  against  Iiis  own  aliena- 
tion, if  he  had  taken   the  estate   to   him   alone,  could  not 
have  been  remitted.     But  when  the  estate  is  made  to  the  hus- 
band and  wife,  albeit  they  be  but  one  person  in  law,  and  no 
(Hob.  255.)  moieties  betweene  them  :  yet  for  that  the  wife  cannot  be  remitted 

in  this  case,  unlesse  the  husband  be  remitted  also,  and  for  that 
remitters,  as  hath  been  often  said,  are  favoured  in  law,  because 
thereby  the  more  ancient  and  better  rights  are  restored  againe; 
therefore  in  this  case,  in  judgment  of  law,  both  husband  and 
wife  are  remitted;  which  is  worthy  of  great  observation. 

Sect.  673. 

A  LSO,  if  land  be  given  to  a  ivoman  in  taile,  the  remainder  to  another 
in  taile,  the  remainder  to  the  third  in  taile,  the  remainder  to  the 
fourth  in  fee,  andthe  ivoman  talceth  husband,  and  the  husband  discontinue 
the  land  in  fee  ;  by  this  discontinuance  all  the  remainders  are  discontinued. 
For  if  the  wife  die  without  issue,  they  in  the  remainder  shall  not  have  any 
remedy  but  to  sue  their  writs  of  formedon  in  the  remainder, 
when  ^^  it  comes  to  their  times  1-  But  if  after  such  discon-  r 3  54.1 
tinuance,  an  estate  be  made  to  husband  and  wife  for  terme  \_  b.  1 
of  their  ttvo  lives,  or  for  terme  of  another  mans  life,  or  other 
estate,  'jc.for  that  this  is  a  remitter  to  the  wife,  this  is],  also  a  remitter 
to  all  them  in  the  remainder.  For  after  that  the  ivife  ivhich  is  in  her 
remitter  be  dead  ivithout  issue,  they  in  the  remainder  may  enter,  <f-e. 
u'ithout  any  action  suing,  ^e.  In  the  same  manner  is  it  of  those  which 
have  the  reversion  after  such  entaile  X. 

41  E.  3.  17.  T  ITTLETOX  having  spoken  of  remitters  to    the  issue  in 

41  Ass.  1.  -t^   ^j^jig^  ^[^Q  ig  pi-ivie  in  blood,  and  to  the  wife,  who  is  privie  in 

36  ss.  p.  .  person,  now  he  spcaketh  of  remitters  to  them  in  reversion  or 
remainder  expectant,  upon  an  estate  taile,  who  are  privie  in 
estate.  And  this  case  proveth  that  the  wife  is  remitted  pre- 
sently;  for  the  equitie  of  the  law  rcquireth,  that  as  the  discon- 
tinuance of  the  estate  in  taile  is  a  discontinuance  of  the  reversion 
or  remainder;  so,  that  the  remitter  to  the  estate  in  taile  should  be 
a  remitter  to  them  in  the  reversion  or  remainder. 
44  Ass.  p.  15.  Tenant  for  life  the  remainder  to  A.  in  taile,  the  remainder  to 

44  E.  3.  30.  j^  in  fee,  tenant  for  life  is  disseised,  a  coilaterall  ancestor  of  ^4. 

42l^''3^Gro^l45  releaseth  with  warrantie  and  dieth,  whereby  the  estate  taile  is 
W. Jonos°"l99.)  barred;  the  tenant  for  life  re-entreth,  the  disseisor  hath  an 
20  E.  3.  Aid.  29.  estate 

*  And  therefore  not  in  L.  and  31.         \  ifr.  added  in  L.  and  M.  and  Roh. 
Oj.  p^oli,  i  aho  not  in  L.  and  M.  or  lloh. 

t  &c.  added  in  L.  and  M.  and  Roh.        %  c£t.  added  in  L.  and  31.  and  Roh. 


L.  3.  C.  12.  Sect.  674,  675.     Of  Remitter.  [354  b. 

estate  in  fee  simple  determinable  upon  the  estate  taile,  and 
the  remainder  of  B.  is  revested  in  him ;  and  so  note  in  this  case 
the  estate  for  life  and  the  remainder  in  fee  are  revested  and  re- 
mitted, and  an  estate  of  inheritance  left  in  the  disseisor.  If  a 
fine  be  levied  sur  grant  ct  render  to  one  for  life  or  in  taile,  the 
remainder  in  fee,  if  tenant  for  life,  or  in  taile,  execute  the 
estate  for  life  or  in  taile,  this  is  an  execution  of  the  remainder. 

A  gift  in  taile  is  made  to  B.  the  remainder  to  C.  in  fee,  B.  Viil.  PI.  Com. 
discontinueth  and  takcth  backe  an  estate  in  taile,  the  remainder  p^g^^^^'fJi^^sy-, 
in  fee  to  the  king  by  deed  inrolled;   tenant  in  taile  dieth,  his  inWalsinf:"haia''3 
issue  is  remitted,  and  consequently  the  remainder,  as  Littleton  case.    17  Eliz. 
here  saith ;  and  the  diversity  is  [«]  bctweene  an  act  in  law,  for  ^y^J^  ^^\^_ 
that  may  devest  an  estate  out  of  the  king,  and  a  tortious  act,  or  ^jt^  lieVceit,' 28. 
entry,  or  a  false  and  a  feined  recovery  against  tenant  for  life  49  E.  3. 16. 
or  in  taile,  which  shall  never  devest  any  estate,  remainder,  or  Nf'^'f,"'"*"  ^ 

-,,.  r-7TT-v,  1  1    /-ii      fctanurd  s  case. 

reversion  out  of  the  kmg.     [/>]  But  a  recovery  by_  good  title  nb.  8.  foi.  76.  b. 
against  tenant  for  life,   or  in  taile,  where  the  remainder  is  to  [6]  cholmley's 
the  king  by  defeasible  title,  shall  devest  the  remainder  out  of  E'''^*'' g'^^^ffio^"'' 
the  king,  and  restore  and  remit  the  right  owners  (1).  j^  ^,,y^  ,;]_ 

22  E.";;.  7. 


Sect.  674,  675. 

A  LSO,  if  a  man  let  a  house  to  a  woman  for  terme  of  her  life,  saving 
the  reversion  to  the  lessor,  and  after  one  sueafeyned  and  false  action 
against  the  woman,  and  recovereth  the  house  against  her  hy  default,  so 
as  the  ivoman  may  have  against  him  a  quod  ei  deforceat,  according  to 
the  statute  of  Westm.  2.  noio  the  reversion  of  the  lessor  is  discontinued, 
so  that  he  cannot  have  any  action  of  waste.  But  in  this  case  if  the 
woman  taJce  husband,  and  he  tvhich  recovereth  let  the  house  to  the  hus- 
band and  his  ivife  for  terme  of  their  tivo  lives,  the  loife  is  in  her  remitter 
by  force  of  the  first  lease. 

Sect.  675. 

AND  if  the  husband  and  wife  make  tvaste,  the  first  lessor  shaU  have 
a  ivrit  of  u'ast  against  them,  for  that  inasmuch  as  the  ivife  is  in  her 
remitter,  he  is  remitted  to  his  reversion.  But  it  seenieth  in  this  case,  if 
hee  that  recovereth  by  the  false  action,  will  bring  another  writ  of  ivastc 
against  the  husband  and  his  wife,  the  husband  hath  no  other  remedie 
against  hi^n,  but  to  make  default  to  the  grand  distresse,  ^-c.  and  cause  the 
wife  to  be  received,  and  to  plead  this  matter  against  the  second  lessor, 
and  shew  how  the  action  wherby  hee  recovered  ivas  false  and  faincd  in 
law,  ^"C.  so  the  wife  may  bar  him  (issint  le  feme  poit  *  luy  barrcr,  &c.) 

"tI  feyned 


*  luy  not  in  L.  and  M.  or  Roll. 


(1)  VI.  Thus  it  may  be  laid  down  as  another  general  rule,  that  a  remitter 
to  the  particular  estate  is  a  remitter  to  him  in  the  reversion  or  remainder.  See 
Com.  Dig.  tit.  Remitter,  B.  5. — [Note  309.] 


354:.  b.  355.  a.]        Of  Remitter.      L.  3.  C.  12.  Sect.  675. 

(5  P.ep.  85.  "   A    FEYNED  and  false  action:'      1.   Arllnficta  et  falsa,  but 

2  Inst.  350.  -^^  hereof  Littleton  speaketh  liimselfe  in  this  Chapter. 

11  Rep.  62.) 

M  W  2  cap.  4.       "  Quod  ei  doforceat,"  is  a  writ  that  is  given  by  [c]  statute  to 

(Ant.  331.  b.)       any   tenant  for  life   or   in   tayle   upon  a  recovery  by  default 

against  them  in  a  prcccipe,   and  lyeth   against  the 

fy^j"  recoveror  and  his  heires,  in  which  case  the  par-  r355.1 

Bracton,  lib.  4,     ticular  tenant  was  without  remedie  at  the  common  law,   L    ^-      J 

•''■'"•  ^''®*-  ?.'^g ^'  because  bee  could  not  have  a  writ  of  right.     And  it  is 

cnp"  u!       '    '     called  a  quod  ei  deforceat,  for  that  they  are  part  of  the  words  of 

7  E.  3.  62.  that  writ,  viz.  Praecipe  A.  quod,  &c.  reddat  B.  unum  mosuaghim, 

Y.  N.  B-  l^''-        &-C.  quod  clamat  esse  jus  et  maritaginm  suiini,  et  quod  idem  A. 
(6  Rcr.  o.  b.)  •   •    •      .^     7  jT"  J 

(Cro.  Jac.  292.      ei  injuste  dejorceat. 

Cro.  Car.  178.  444.) 

(F.  N.  B.l55.b.)  "  Recover etJi,  &c.  ly  default:'  There  hath  beene  a  question 
in  our  bookes  upon  these  words  (by  default) :  as  for  example, 
whether  a  recoverie  had  by  default  in  an  action  of  waste  against 
tenant  in  dower,  or  by  the  courtcsie,  a  quod  ei  dfforceat  lyeth 

W.  2.  cap.  4.  by  the  said  statute.  And  divers  hold  opinion,  that  in  that  case 
no  quod  ei  deforceat  lieth,  for  that  judgement  is  not  given  by 
default;  for  notwithstanding  the  default,  there  goeth  out  a  writ 
to  enquire  de  vasto  facto,  et  quod  vastum  j^^'^edictum  A.  {fJie 
defendant)  fecit ;  so  as  the  defendant  may  give  evidence,  and 
the  jurors  may  finde  for  the  defendant,  that  no  waste  was  done  : 
as  in  the  assise  albeit  it  bee  awarded  by  deiault,  yet  may  the 
tenant  give  evidence,  and  the  recognitors  of  the  assise  may 
tiade  for  the  tenant;  and  therefore  in  those  cases,  the  defendant 

F.  Is".  B.  fol.         or  tenant  non  amittit  j^er  defaltam,  as  the  statute  and  Littleton 

155.  E.  speaketh,  and  they  cite  F.  N.  B.  in  the  point  (1). 

Secondly, 


(1)  Co.  MSS.  215,  p.  33  Ellz.  Elmer  v.  Thackers.  The  case  ic as  this. 
Elmer  and  his  wife,  tenant  in  doiver,  brought  quod  ei  deforceat  versus 
ir.  Tharher,  who  pleaded,  that  30  Eliz.  he  hrought  laaste  against  the  demandants 
v:ho  appeared,  and  upon  nihil  dicit  Vi.  Thacker  recovered  damages  and  had 
judgment.  The  demandants  replied,  nul  wast  fait.  The  tenant  demurred,  in 
law;  and  these  p>oints  were  moved,  \st,  IFAe^Aer  quod  ei  deforceat  lies  upon 
rccove.ru  hi/  default  against  tenant  in  dower  in  waste.  Id,  Admitting  that  it  docs, 
whether  quod  ei  deforceat  lies  upon  the  recovery  hy  nihil  dicit,  as  this  case  is. 
As  to  the  second 2>oint,  the  ichole  court  resolved  clearly,  that  quod  ei  deforceat 
does  not  lie  ;  for  in  as  much  as  the  judgment  upon  nihil  dicit  is  after  ajypcar- 
ance,  there  the  default  is  nrjt  the  cause  of  the  judgment ;  and  the  statute  says, 
per  defaltam:  and  for  this  reason  judgment  was  given  against  the  demandant, 
as  appears  afterwards  in  page  356.  But  as  to  the  \st  point  it  was  ohjected,  that 
quod  ei  deforceat  does  not  lie  upon  default  of  tenant  in  dower  in  wasts,  as  is  the 
case  here  ;  for  if  it  should,  lie  in  this  ca.^e,  he  shall  avoid  the  verdict  of  twelve  men, 
which  was  not  the  intention  of  the  statute,  hut  emly  to  relieve  the  tenant  where  he 
makes  default ;  therefore,  in  as  much  as  the  tenant,  notwithstanding  the  d( fault, 
might  give  evidence  to  the  jury,  then  every  person  in  policy  might  make  defend  t, 
if  afterwards  he  might  prevail  ujwn  evidence  to  have  qaod  ei  deforceat:  and  the 
reason  of  F.  A\  B.  is,  that  the  verdict  has  found  waste.  2  Hen.  2.  If  in  waste 
the  jury  find  falsely,  attaint  lies,  and  21  Hen.  G.  56,  34  Hen.  6.  12._;  so  where 
the  assise  is  awarded  for  default,  yet  the  tenant  may  have  attaint,  if  it  bejound 
against  him  by  false  oath.  17  Ed.  2.  Attaint,  S9.  MIJcn.6.7.  Frior  re- 
covers in  waste,  and  has  a  writ  of  inquiry  in  waste,  and  the  sheriff  returns  the 
waste  20  marks,  and  awards  that  he  shall  recover  the  place  tvasted,  and  treble 

damages. 


L.  3.  C.  12.  Sect.  675.     Of  Remitter.  [355.  a.  355.  b. 

Secondly,  they  hold  that  a  qnnd  el  (h'forrmt  lieth  where  the  2  H.  4.  2. 
tenant  can  have  no  remedie  by  attaint;  but  in  this  case  (say  21  |^^-|-"^' 
they)  an  attaint  doth  lie.  3  H.  G.'2'j'. 

22  E.  3. 10. 

Thirdly,  they  hold,  that  in  an  action  of  waste,  although  it  be  (8  Rep.  8j.) 
brought  against  a  tenant  in  dower,  or  tenant  by  the  courtesie 
that  have  a  freehold,  yet  the  daniniages  are  the  principall ;  for 
they  were  recoverable  against  tenant  in  dower  and  by  the  cour- 
tesie by  the  common  law;  and  the  statute  of  Glocxahr 
[355. "I  gave  JB®"-  the  place  Avastcd  but  for  a  penaltie,  so  as  the 
b.      J  nature  of  the  action  (say  they)  reniaineth  still  to  bee  ("  Rep-  GS.  b.) 
personall,  for  that  the  dammages  are  the  principall : 
[(/]  and  in   proofe  hereof  they  cite  divers  authorities  in   law.  ['G  3-t  H.  G.  7. 
And  if  two  bring  an  action  of  waste,  the  release  of  one  of  them  ^^  ^^^  j,  ^^ 
is  a  good  barre  against  the  other,  [t]  and  so  resolved  by  the  [e]  9  H.  5.  l;';. 
whole  court;  which  proveth  (say  they)  that  the  dammages  are  30  H.  6.  tit. 
the  principall :  for  if  the  land  were  the  principall,  the  release  ^'*'-  ^^• 
of  one  of  them  should  not  barre  the  other,  no  more  than  in  an 
a.ssise,  a  writ  of  ward,  an  ejectionc  finnx,  &c. 

Lastly,  they  say,  that  in  actions  where  damages  are  to  be 
recovered,  and  the  land  is  the  principall,  the  demandant  never 
counteth  to  dammages,  and  yet  shall  recover  them  :  but  in  an 
action  of  waste  the  plaintifie  counteth  to  bis  dammage ;  and  if 
tliQ  dammages  be  the  principall,  then  cleerely  no  quod  ei  thfor- 
ccat  lieth. 

Others  doe  hold  the  contrarie :  and  as  to  the  first  they  say,  that 
albeit  that  in   the  writ   of  waste,  judgement  is  not  only  given 
upon  the  default,  yet  the  default  is  the  principall,  and  the  cause 
of  awarding  of  the  writ  to  enquire  of  the  waste  as  an  incident 
thereunto :  and  the  law  alwayes  hath  respect  to  the  first  and 
})rincipall  cause;  and  therefore  upon  such  a  recoverie  [*]  a  writ  [*]  17  e.  3.  TiS. 
of  deceit  lieth;  and  that  writ  lieth  not  but  where  the  recoverie  29  E.  3.  42 
is  by  default.     So  in  an  action  of  waste  against  the  husband  and  ^g  n.  i.  i. 
wife,  upon  the  default  of  the  husband,  the  wife  shall  be  received;  19  e.  2. 
and  yet  the  statute  there  speaketh  also,  per  defaltam.     So  upon  Disceit,  5(5. 
such  a  recoverie  in  waste  against  the  baron  and  feme  by  default,  ^  ^  'l^^l^\  '{ 
tlie  wife  shall  have  a  cui  in  vita  by  the  statute;  and  it  speaketh  w.  2.  ea.  3. 
where  the  recoverie  is  j)er  dcfidtam.     And  albeit  the  defendant  y  E.  4.  IG. 
may  give   in  evidence,  if  he  knoweth  it ;  yet  when  he  makes 
default,  the  law  presumeth  he  knoweth  not  of  it,  and  it  may  be 
that  he  in  truth  knew  not  of  it;  and  therefore  it  is  reason,  that 
seeing  the  statute,  that  is  a  beneficiall   statute,   hath  given  it 
him,  that  he  be  admitted  to  his  quod  ei  dvforceat,  in  v.hich  writ 

the 


E. 


damages,  and  that  he  shall  have  execution  for  the  damages  immediately,  licet 
cesset  execution  for  the  thing  wasted  till  the  collusion  should  be  inquired  into, 
therefore  the  damages  are  the  principal ;  for  it  is  710  v:here  fovnd  that  execntion 
should  be  awarded  of  the  nrccssor?/  Ik  fore  the  principal:  and  for  this  reason, 
12  Rich.  2.  Estrcpement  6.  Judgment  shall  not  be  given  in  the  cstrepement, 
because  it  is  onh/  the  accessory,  until  judgment  shall  be  given  in  the  principal 
plea.  And  in  'Elmer  s  case,  ante  o.55.  it  teas  resolved,  tliat  this  writ  lies  uptm 
recovery  by  default  in  tcaste  against  tenant  in  dower,  or  any  other  tenant  for 
life.—Lox^  Not.  MSS.— [Note  310.] 


355.  b.]  Of  Kemitter.      L.  3.  C.  12.  Sect.  675- 

f  1  E.  3.  S.  b.  the  truth  and  right  shall  be  tried.    And  so  it  is  of  a  reeoverie  by 

^  11.  4.  2.  defuult  in  an  assise;  albeit  the  recognitors  of  the  assise  give  a 

4iE'3*4^'  verdict,  a  quod  ei  deforceat  lieth.     And  all  this  as  to  this  point 

Br.  tit.  Quod  ci  "was  resolved  by  the  whole  court  of  common  pleas;  and  so  the 

doforc.  4  Pasch.  doubt  in  41  E.  3.   8.  Well  resolved.     Nota,  if  tenant  for  life 

f'?9^^'-^°'^'Ei  '^"^^^^^  default  after  default,  and  he  in  the  reversion  is  received 

Elmer  k  El.  sa  ^'^^1  plead  to  issuc,  and  it  is  found  by  verdict  for  the  demandant, 

feme,  ten.  en  the  default  and  the  verdict  are  causes  of  the  judgement;  and 

dower  demand-  yg^  ^\^q  tenant  shall  have  a  quod  ei  deforceat. 

ants,  it  U  il.  •'                                                        .t                   ./ 

Thacker  ton.  in  quod  ei  deforceat.     (Cro.  Eliz.  263.) 

As  to  the  second  objection,  that  the  defendant  may  have  au 

[/]  33  E.  3.  attaint.    First,  it  was  utterly  denied,  of  the  other  part,  [/]  that 

Quod  ei  deforc.  an  attaint  did  lie  in  this  case ;  for  though  it  be  taken  by  the 
j-g"  y  jj'gj    '  oath  of  twelve  men,  yet  it  is  but  au  enquest  of  office,  whereupon 

1.  5.  c.  21.  DO  attaint  did  lye  on  either  partie,  as  upon  an  enquirie  of  coUu- 

48  E.  3.  19.  sion,  although  it  be  by  one  jurie,  nor  upon  a  verdict  of  qiicde 

33  H^^6^^5  V^^'  S'^condly,  admitting  that  an  attaint  did  lie  in  that  case,  yet 
39  H.  6.  1.  i^  foUoweth  not  ex  consequenti,  that  a  quod  el  deforceat  did  not 
r.  X.  B.  107.  lie ;  [(/']  for  if  an  assise  bee  taken  by  default,  a  quod  ei  deforceat 
^'A  ^'^t^i^'Q^'  ^^^^^^  ^^^'>  ^^^^  y^^  ^^^^  partie  may  have  an  attaint;  for  this  is  no 
21  H.  fi".  5(3.  enquest  of  office,  but  a  recognition  by  the  recognitors  of  an  assise, 

34  H.  6. 12.  who  were  returned  the  first  day,  and  not  returned  upon  the 
AT  *"'i's4*^^'  awarding  of  the  assise  by  default.  And  as  to  the  second  objection, 
F.  N.  B.107.  C.  ^^  ^'"'"^  opinion  was  the  whole  court  in  Edward  Elmer's  case  above 
(i  Rep.  8.  b.  mentioned.  As  to  the  third  objection,  that  the  damages  should  bee 
11  Rep.  5.)  tlie  principal!,  because  they  were  at  the  common  law;  that  is  au 

argument  (say  the  other  side)  that  they  are  more  antient,  but  not 
that  they  are  more  principall ;  and  treble  damages  were  not  at 
the  comuion  law  (for  the  common  law  never  giveth  more  dam- 
mage  than  the  losse  amouuteth  unto),  but  are  given  by  the  sta- 
tute of  Glocestcr ;  but  the  place  wasted  is  worthier  being  in  the 
realtie,  than  dammages  that  be  in  the  personaltie:  Et  omne  ma- 
jus  dignum  trahit  ad  se  minus  dignum,  quamvis  minus  dignum 
sit  antiquius  etddigniori  debet  fieri  denominatio.-  And  it  is  con- 
34  H.  6.  7.  fcssed,  that  in  an  action  of  waste  against  tenant  for  life,  or  for 

Wast.  60.  yeares,  the  place  wasted  is  the  principall,  because  the  statute  of 

Glocester  iloih  give  the  place  wasted  and  treble  dammages  at  one 
time;  for  no  prohibition  or  action  of  waste  lay  against  them  at 
the  common  law;  and  in  an  action  of  waste,  if  the  defendant 
confesse  the  action,  the  plaintife  may  have  judgement  for  the 
place  wasted,  and  release  the  dammages;  which  proveth  (and  so 
i^^Vs/icrie/'^collecteth)  that  the  dammages  are  not  the  principall: 
(10  Rep.  115.  for  a  man  shall  never  release  the  principall  and  have  judgement 
\  ^'^°-  ^O?-  of  the  accessorie :  and  an  action  of  waste  against  tenant  for  life 

is  as  reall  as  an  action  against  tenant  in  dower.     And  as  to  the 
case  of  9  H.  5.  cited  on  the  other  side,  it  was  answered,  that  it 
was  an  action  in  the  tenuit,vi\\\(i\\  is  only  in  the  personaltie,  and 
then  the  release  of  the  one  doth  bar  both;  neither  could  sum- 
[h]  fi  E.  3.  47.      monsand  severance  lie  in  that  case;  [7i]  but  in  an  action  of  waste 
48  E.  3.  19.         (in  the  tenet),  either  aoainst  tenant  for  life  or  for  yeares,  the 
A.,*  tJq  „'    '      release  of  the  one  doth  not  barre  the  other;  and  in  both  tliose 
285.  a.)  cases  summons  and  severance  doth  lie  :  and   this  point  was  also 

resolved  accordingly  in  Edward  Elmer  s  case.  But  when  these 
three  points  were  resolved  by  the  court  for  the  demandant,  then 
the  councell  of  the  tenant  moved  in  arrest  of  judgement  another 
point,  viz.  that  the  judgement  was  given  upon  a  niliil  dicit,  which 

is 


L.  3.  C.  12.  Sect.  675.       Of  Eeraitter.       [355.  b.  356.  a. 

is  alwayes  after  appearance,  and  not  j;*?/-  drfaJtam ;  and  there- 
upon judgement  was  stayed  (I). 
r856."|       B^  But  to  return  to  Littleton.     Here  lie  opencth  a  (s  Eep.  62. 356. 
L     a.     J  secret  of  law;  for  the  cause  of  this  remitter  is,  for  that  2■T■^■.^3-o^^■  ^' 

the  tenant  for  life  in  this  case  might  have  a  quod  ei 
tJcforceat,  for  so  Littleton  saith :  so  as  she  may  have  a  quod  ei 
deforceat:  Now  it  appeareth  by  our  bookes,  that  the  tenant  for 
life  at  the  common  law  was  remediless,  because  he  could  not 
have  (as  hath  beene  sayd)  a  writ  of  right;  and  consequently  the^ 
feme  covert  in  this  case  could  not  be  remitted  by  the  taking  of 
an  estate  to  her  husband  and  her,  because  her  right  was  remedi- 
lesse,  and  could  have  no  action.     But  when  an  act  of  parliament  ^.^^  ^^^  ^j^^ 
or  a  custome  doth  alter  the  reason  and  cause  thereof,  thereby  the  cases  upou  this 
common  law  it  selfe  is  altered,  if  the  act  of  parliament  and  cus-  gvound,  it  II.  7. 
tome  be  pursued;  for  Alteratd  causa  ct  ratione  hy is,  alteratur  et  27'ii';'y.  4"b!''' 
Aid.  35  H.  6.  Gard.  72.     29  E.  3.  5.  per  Wilbie  Custome.     Lib.  3.  fol.  86. 
Justice  Windham's  case,  a.  &  b. 

lex, 


(1)  Sir  Edward  Coke,  in  his  commentary  on  the  statute  of  Gloucester, 
2  lust.  286.  observes  that  regularly  in  personal  and  mixed  actions  damages 
M-ere  to  be  recovered  at  the  common  law;  but  that  in  real  actions  no  damages 
were  to  be  recovered  at  the  common  law,  because  the  court  could  not  give  the 
demandant  that  which  he  demanded  not;  and  the  demandant  in  real  actions 
demanded  no  damages  either  by  writ  or  count.  The  assize  was  a  mixed  action : 
and  therefore  if  upon  the  trial  the  demandant  made  out  his  title,  his  seisin,  and 
his  disseisin  by  the  tenant,  he  had  judgment  to  recover  his  seisin  and  his 
damages  for  the  injury  sustained.  Bu't  the  damages  in  these  cases  were 
awarded  against  the  disseisors  only,  and  not  against  their  alienees  or  tenants. 
The  statute  of  Marleberge,  52  Hen.  3.  c.  16.  gave  damages  in  a  writ  of  mort- 
auncestor  against  the  chief  lord.  The  statute  of  Gloucester,  6  Ed.  1.  c.  1. 
was  a  considerable  extension  of  the  law  of  damages.  It  ordained,  that  if  the 
disseisor  should  alien  the  lands,  and  should  not  have  whereof  damages  might 
be  levied,  the  person  into  whose  hands  the  tenements  came  should  be  charged 
with  the  damages,  so  that  each  should  answer  for  the  time  he  held  them;  that 
the  disseisee  should  recover  damages  on  a  writ  of  entry  sur  disseisin  against 
him  who  was  found  tenant  against  the  disseisor;  that  damages  should  for  the 
future  be  recovered  in  a  writ  of  mortauncestor,  as  in  one  of  novel  disseisin; 
and  also  in  writs  of  cosinage,  aiel,  and  besaiel;  and  generally,  that  damnges 
should  in  all  cases  be  rendered  where  the  land  was  recovered  against  a  man 
upon  his  own  intrusion,  or  his  own  act.  The  statute  then  mentions,  that  till 
that  time  damages  had  been  taxed  only  to  the  value  of  the  issues  of  the  land : 
it  was  therefore  provided,  that  a  demandant  in  future  should  recover  the  costs 
of  the  writ  purchased,  together  with  the  damages,  not  only  in  the  above  in- 
stances, but  generally  in  cases  where  he  was  entitled  to  recover  damages. 
Though  this  statute  only  mentions  the  costs  of  the  writ,  the  construction  of  it 
has  been  extended  to  the  whole  expense  of  carrying  on  the  suit.  Before  this 
statute  the  justices  in  eyre  used,  where  the  plaintiff  obtained  a  verdict,  to 
compute  the  expenses  of  the  suit,  and  in  assessing  damages,  assessed  a  sum 
sufficient  to  satisfy  that  expense  as  well  as  the  damages.  The  statute  of 
Marlhridge  gave  costs  in  particular  cases  to  the  defendant;  so  that  it  is  a  mis- 
take to  say,  that  the  statute  of  Gloucester  Avas  the  lirst  statute  by  which  costs 
were  given;  See  Sayer's  Law  of  Costs,  p.  3.  The  general  law  of  costs  still 
rests  on  the  statute  of  Gloucester;  so  that  where  costs  were  not  recoverable 
before  that  statute,  they  are  not  recoverable  now,  unless  in  those  cases  where 
they  have  been  given  either  by  the  statute  of  Gloucester  or  by  some  subse- 
quent statute. — [Note  oil.] 


3o6.  a.]  Of  Remitter.         L.  3.  C.  12.  Sect.  675. 

Icx,  et  cessante  causa  seu  rafione  Icrjis  cessnf  ct  lex :  as  in  this  case 
the  statute  of  IF.  2.  giving  remedie  to  this  feme  tenant  for  life, 
in  this  it  giveth  her  abilitie  to  bee  remitted,  because  her  right  is 
not  now  remedilesse,  but  she  hath  an  action  to  recover  it. 

And  Littleton  warily  putteth  his  case,  that  the  recoverie  was 

had  against  the  feme  while  she  was  sole;  for  there  was  a  time 

when  it  was  a  question,  whether  a  recoverie  being  had  by  default 

against  the  husband  and  wife  (the  wife  being  tenant  for  life)  the 

said  statute  gave  a  quod  ei  deforccat  to  the  husband  and  wife,  for 

that  the  statute  gave  it  against  tenant  in  dower  and  tenant  for 

life,  &c.  and  here  the  husband  is  not  tenant  for  life,  but  seised 

in  the  right  of  his  wife,  and  therefore  out  of  the  statute:  and  of 

f//]  4  E.  3.  3.  38.  this  opinion  is  one  [(/]  booke;  but  (^Apices  juris  non  simt  Jura, 

33  E.  3.        _        et  i^ariim,  dljfcrunt  qvce  re  concordant)  the  contrarie  hath  beene 

se'T'I'    ^^        adjudged,  and  so  that  point  is  now  in  peace;  and  the  like  in 

F.  X.  B.  156.  A.  case  of  receit  for  him  in  reversion.     But  if  the  husband  and  wife 

5  E-  3.  5.  lose  by  default,  and  the  husband  die,  the  wife  shall  not  have  u 

p  ^T  -D   "g  n    qriod  eideforccat;  for  a  cui  in  vita  is  given  to  her  in  that  case  by 

33  H.  6.' 46.  '    "  ii  former  statute,  viz.   TT'  2.  cap.  3.     These  things  are  worthy  of 

2  E.  4. 11.  due  observation,  and  points  of  excellent  learning;  and  JLittU-ton 

19  E.  4.  2.  jjj  Q^j,  ]3Qo]jes  speakes  of  another  kinde  of  quod  ei  deforceat  at 

the  common  law,  upon  a  disseisin,  which  you  may  read.     But 

now  let  us  heare  him  in  his  booke. 

45  E.  3.  21.  "  Tlie  reversion  is  discontinued,  so  fJiaf  he  cannot  have  an// 

V^x  Ti  fin'  ^^'     (^'^^ion  of  waste."     Here  it  appeareth,  that  when  the  reversion  is 

23  H  8.  tit*         devested,  the  lessor  cannot  have  an  action  of  waste,  because  the 

Wast.  Br.  138.      writ  is,  that  the  lessee  did  waste  ad  crhitrcdationem  of  the  lessor, 

^f'^'oS;'/' '^'^^*      ^^^  *^i'^*  inheritance  must  continue  at  the  time  of  the  action 

33V  bV"  ^*  brought.     And  it  is  to  bee  observed,  that  in  an  action  of  waste 

brought  by  the  lessor  against  the  lessee,  the  lessee  in  respect  of 

the  privitie  cannot  plead  generally,  riens  en  le  reversion,  viz. 

[S]  46  E.  3.  20.     [A]  that  the  lessor  hath  nothing  in  the  reversion,  but  he  must 

s  H.  6. 17.  shew  how  and  by  what  meanes  the  reversion  is  devested  out  of 

"      •  "•  '•  him;  and  this  holdeth  (as  hath  been  said)  betweene  the  lessor 

and  the  lessee;  but  if  the  grantee  of  a  reversion  bringeth  an 

action  of  waste,  the  lessee  may  plead  generally,  that  he  hath 

(Ant.  54.  a.  nothing  in  the  reversion.     And  j-et  in  some  speciall  cases  an 

Mo.  52.  action  of  waste  shall  lie,  albeit  the  lessor  had  nothing  in  the 

reversion  at  the  time  of  the  waste  done.     As  if  tenant  for  life 

make  a  feojffment  in  fee  upon  condition,  and  waste  is  done,  and 

after  the  lessee  re-enter  for  the  condition  broken;  in  this  case  the 

(F.  X.  B.  112.  b.)  lessor  shall  have  an  action  of  waste.     And  so  if  a  bishop  make 

a  lease  for  life  or  yeares,  and  the  bishop  die,  the  lessee,  the  fee 

being  void,  doth  waste,  the  successor  shall  have  an  action  of 

waste.     So  if  lessee  for  life  be  disseised,  and  waste  is  done,  the 

lessee  re-enter,  an  action  of  waste  shall  be  maintained  against 

the  lessee;  and  so  in  like  cases:  and  yet  iu  none  of  these  cases 

the  plaintiffe  in  the  action  of  waste  had  any  thing  in  the  rever- 

sion  at  the  time  of  the  waste  made;  but  these  especiall  cases 

(   OS      -.  a.;       \^^yQ  their  severall  and  especiall  reasons,  as  the  learned  reader 

will  easily  fiude  out. 

Here  note,  that  albeit  the  action  be  false  and  feigned,  yet  is 

the  recoverie  so  much  respected  in  law,  as  it  worketh  a  discon- 

[(■]  5  Ass.  pi.  3.    tinuance.     [  (']  But  if  tenant  for  life  suffiT  a  comm-'U  recoverie. 

^  E.  3.  Qj.  ajjy   other  recoverie   by  covine  and  consent  betweene   the 

Ent.  Cong.  42.  -^  -^ 

15  E.  3.     Age,  95.     21  E.  3.  18.  per  Finchden.     22  E.  3.  2.  b.     Lib.  1.  fol.  15. 

Sir  William  Pelham's  case.     14  El.  cap.  8. 

tenant 


L.  3.  C.  12.  Sect.  676-77.  Of  Remitter.   [356.  a.  356 

tenant  for  life  and  the  recoveror,  this  is  a  forfeiture  of  his 
estate,  and  he  in  the  reversion  may  presently  enter  for  the 
forfeiture.  Since  our  author  wrote,  the  statute  of  14  El.  cap.  6, 
hath  beene  made  concerning  this  matter,  which  is  to  be  con- 
sidered [A-]  and  hath  beene  well  construed  and  expounded,  and  [k]  Lib.  .3. 
needs  not  here  to  be  repeated.  ^°]-  ^^- 

Audit  is  to  be  observed,  that  although  the  discontinuance     ^^'    '  '^ ' 
groweth  by  matter  of  record,  yet  the  remitter  may  be  wrought 
by  matter  in  jyaHs :  and  of  the  residue  of  these  two  Sections 
sufficient  hath  beene  said  before. 


•] 


356.]  K:?"  Sect.  676.  gS?Sa.) 


ALSO,  if  the  hushand  discontinue  the  land  of  his  wife,  and  after  taketh 
hacke  an  estate  to  him  and  to  his  wife,  and  to  a  third  person  frr 
ternie  of  their  lives,  or  in  fee,  this  is  no  remitter  to  the  ivife,  hut  as  to  the 
moitie  (ceo  *  n'est  un  remitter  a  la  feme,  forsque  quant  a  la  moity)  ;  and 
for  the  other  moitie  she  must  after  the  death  of  her  husband  sue  a  tvrit 
of  cui  in  vita.f 

''  Tf  HIS  As  no  rpmittcr  hut  a.f  to  the  moitie,  d:c."     Albeit  there  44  E.  .3.  ir. 

-^  ,  is  authoritie  in  our  bookes  to  the  contrarie,  yet  the  law  ^g-^''-^" 
is  taken  as  Littleton  here  holdeth  it,  and  as  before  it  appeareth  in  yid.Sect.  GGG. 
the  like   case   in  this  Chapter,  and  for  the  reason  therein  ex- 
pressed. 


Sect.  677. 


ALSO,  if  the  husband  discontinue  the  land  of  his  wife,  and  goeth. 
beyond  sea,  and  the  discontinuee  let  the  same  land  to  the  wife  for 
terme  of  her  life,  and  deliver  to  her  seisin  ;  and  after  the  husband  coni- 
meth  hacke,  and  agreeth  to  this  liverie  of  .seisin,  this  a  remitter  to  the 
ivife:  and  yet  if  the  ivife  had  beene  sole  at  the  time  of  the  lease  made 
to  her,  this  should  not  be  to  her  a  remitter.  But  inasmuch  as  .she  zvas 
covert  baron  at  the  time  of  the  lease,  and  liverie  of  seisin  made  unto 
her,  albeit  she  taketh  only  the  liverie  of  seisin,  this  was  a  remitter  to 
her  because  a  feme  covert  shall  he  adjudged  as  an  infant  ivithin  age  in 
such  a  case,  <j-c.  Qusere  m  this  case  if  the  husband  when  hce  comes 
hacke,  will  disagree  to  the  lease  and  livery  of  seisin  made  to  his  wife  in 
his  absence,  if  this  shall  ouste  his  wife  of  her  remitter,  or  not,  <j'c.  (si  % 
coo  oustera  son  feme  de  son  remitter,  H  ou  nemy,  &c.) 

''  A  ND  after  the  husband  commeth  hacke  and  agreeth,  dx."  In  PJ^-  Z^"  l'^' 
■^  this  case  the  estate  is  in  the  feme  covert  presently  by  the  [  j^;  ^^'•^'^■^^ 
liverie  before  any  agreement  by  the  husband ;  and  of  this  opinion  39  e.  3.  .30. 
is  Littleton  in  our  bookes.  27  H.  8.  24. 

"  Goeth 

*  n'pst — est,  L.  and  M.  and  Roh.         |j  ou  nemy,  &c.  not  in  L.  and  M.  or 
f  ((t.  added  in  L.  and  M.  and  Roh.     Roh. 
\  ceo — ^jeo,  L.  and  M.  and  Roh. 


356.  b,  357.  a]      Of  Eemitter.      L.  3.  C.  12.  Sect.  678. 

(4  Inst.  146.)  "  Goptli  hryond  »ea."     If  liee  had  beene  within  the  realrne,  it 

doth  not  alter  the  case. 

''  Qusere  in  this  case  if  the  husband,  (f'c."  Here  is  a  question 
moved  by  Littleton,  whether  the  disagreement  of  the  husband 
shall  ouste  the  wife  of  her  remitter.  And  it  seemeth  that  the 
disagreement  shall  not  devest  the  remitter. 

First,  because  the  state  made  to  the  wife  which  wrought  the 
remitter  is  banished  and  wholly  defeated,  and  therefore  no  dis- 
agreement of  the  husband  can  devest  the  state  gained  by  the 
lease,  which  by  the  remitter  was  devested  before. 

Secondly,  for  that  the  law  having  once  restored  her  anticut 
and  better  right,  will  not  suffer  the  disagreement  of  the 
husband  to  devest  it  out  of  her,  and  to  revive  the  Xi®"   r357.1 
discontinuance,  and  revest  the  wrongfuU  estate  in  the   L     ^*     J 
discontinuance. 

Thirdly,  for  that  remitters  tending  to   the  advancement  of 
ancient  rights  are  favoured  in  law. 
41  E.  3.18.  And  so  it  is  for  the  same  causes,  if  the  wife  survive  her  hus- 

(Plo.  114.  b.)        band,  she  cannot  claime  in  by  the  purchase   made  during  the 
coverture;  but  the  law  adjudgeth  her  in  her  better  right.     But 
^SEiiz.  if  both  estates  be  waiveable,  there  albeit  the  \i\i^  'prima  facie  is 

Dier,351.  remitted  J  yet  after  the  decease  of  her  husband  she  may  elect 

which  of  the  estates  she  will.     As  if  lands  be  given  to  the  hus- 
band and  wife  and  their  heires,  the  husband  make  a  feoflFment  in 
fee,  the  feoffee  giveth  the  land  to  the  husband  and  wife  and  the 
(2  Rep.  .".7.  heires  of  their  two  bodies,  the  husband  dieth ;  in  this  case  the 

.S^Rcp.  26.  b.  ^.jfg  j^j^y  gjpgt^  which  of  the  estates  shee  will ;  for  both  estates 
2lloil.  Abr.  421  are  waiveable,  and  her  time  of  election  and  power  of  wayver 
422.  423.  '  accrewed  to  her  first  after  the  decease  of  her  husband.     If  lands 

9  Rop.  140.  b.  jjg  given  to  a  man  and  the  heires  females  of  his  body,  and  he 
Anto°'2*46!'a.  348.  maketh  a  feoffment  in  fee,  and  take  backe  an  estate  to  him  and 
3  Leon.  2.)  his  heires,  and  dieth,  having  issue  a  daughter,  leaving  his  wife 

(jrossement  enscint  with  a  sonne(A)  and  dieth,  the  daughter  is 
remitted ;  and  albeit  the  sonne  be  afterward  borne,  he  shall  not 
devest  the  remitter  (1). 


Sect.  678. 

ALSO,  if  the  husband  discontinue  the  lands  of  his  ivife,  and  the  dis- 

continuee  is  disseised,  and  after  the  disseisor  lettcth  the  same  lands  to 

the  husband  and  ivifefor  terrne  of  life,  this  is  a  remitter  to  the  wife.  But 

if 

(A)  Here  the  words  "and  dietb,"  are  repeated,  and  appear  to' be  printed  by  wittale. 


( 1 )  VII.  The  remitter  defeats  the  irrongful  estate  immediately  without  entry  ; 
yet  where  both  estates  are  waveable  by  a  wife,  without  prejudice  to  a  third 
person,  she  may  wave  which  she  pleases.  But  if  a  third  person  is  interested, 
she  must  take  her  ancient  estate.  Thus,  if  there  be  a  feoffement  to  the  husband 
and  wife  in  tail,  remainder  to  A.  the  husband  discontinues,  and  takes  back  an 
estate  to  him  and  his  wife  in  tail,  remainder  to  B.  though  the  wife  in  respect 
to  herself  may  take  either  the  original  estate  tail,  or  the  estate  tail  created  by 
the  feoffment,  both  the  estates  being  after  marriage ;  yet  she  ought  to  tiike 
the  first,  being  for  the  benefit  of  A.  the  rightful  remainder-man.  Hob.  17.  255. 
—[Note  312.] 


L.  3.  C,  12.  Sect.  678.     Of  Eemitter.       [357.  a.  357. 1). 

if  the  husband  and  his  wife  were  of  covine  %  and  consent  that  the  dis- 
seisin should  be  made,  then  it  is  no  remitter  to  the  wife,  because  she  is 
a  disseiseresse.  But  if  the  husband  tvere  of  covin  and  consent  to  the 
disseisin,  and  not  the  u'ife,  then  such  lease  made  to  the  tvife  is  a  remit- 
ter, for  that  no  default  loas  in  the  wife. 

"  A  ND  after  the  disseisor  kttcth  the  same  lands,  tfr."     Note,  18  E.  4.2.  b. 

so  much  are  remitter.s  favoured  iu  lave,  that  the  state  made  (^'-  ^'-  ^-  '•^^-  <^-) 
by  the  disseisor  (which  commsth  to  the  Uuid  by  wrong,  aud  upon 
whom   the   entry  of  the  discontinuec  is  hiwfuU)  doth  remit  the 
wife,  and  devesteth  all  out  of  the  diseontinuee,  albeit  he  hath  a 
warrantie  of  the  land. 

"Bat  if  the  hiishand  and  wife  were  of  covine  and  consent,  &c."  18  E.  4.  ubi 
Here  it  appeareth  that  covin  and  consent  of  the  husband  and  ^"P'"'^- 
wife  doth  hinder  the  remitter  of  the  wife ;  for  covine  and  con-  [o  ilep.  71.) 
sent  in  many  cases  to  do  a  wrong,  doth  choak  a  mere  riglit,  aud 
the  ill  manner  doth  make  a  good  matter  unlawful!. 

"Covine."      Covina,  corameth  of  the  French  word  (PI-  Com.  54G.) 
r357.1     Convine,  and  is  a  secret  assent  B@»  determined  in  the  casY'""^'^^^''* 
|_     b.      J    hearts  of  two  or  more  to  the  defrauding  aud  prejudice  (Ant.  35.  a. 
of  another.  4  Rep.  82.  b. 

F.  N.  B.  98.  D.) 

A  woman  is  lawfully  intitled  to  have  dower,  and  she  is  of  44  E.  3. 46. 

covine  and  consent,  that  one  shall  disseise  the  tenant  of  the  land,  ^^  a«/'29^' 

ao-ainst  whom  she  may  recover  her  lawfull  dower,  all  which  is  jg  jj';  §_  j2. 

done  accordingly;  the  tenant  may  lawfully  enter  upon  her,  and  is  H.  8.  5. 

avoid  the  recovery  in  respect  of  the  covine.     But  if  a  disseisor,  l^j^'^^'-f^' 

intruder,  or  abator,  doe  endow  a  woman  that  hath  a  lawfull  title  ^g  p'gp\  ^^: 

of  dower,  this  is  good,  and  shall  binde  him  that  right  hath,  if  pio.  51.  a.  54. 

there  were  no  such  covine  or  consent  before  the  disseisin,  abate-  ^^^-  '■^^-  a-) 

ment,  or  intrusion. 

And  so  it  is  in  all  cases  where  a  man  hath  a  rightfull  and  just  41  Ass.  p.  2s. 

cause  of  action ;  yet  if  he  of  covine  and  consent  doe  raise  up  a  25  Ass.  p.  1. 

tenant  by  v/rong  against  whom  he  may  recover,  the  covine  doth  j.  jj*^4.'4.'  a. 

suifocate  the  right,  so  as  the  recovery,  though  it  be  upon  a  good  12  Asb.  p.  10. 

title,  shall  not  binde  or  restore  the  demandant  to  his  right. 

If  tenant  in  taile  aud  his  issue  disseise  the  diseontinuee  to  the  11  e.  4.  2. 
use  of  the  father,  and  the  father  dieth,  and  the  land  desceudeth  15  E.  4.  23. 
to  the  issue,  he  is  not  remitted  against  the  diseontinuee  in  respect  .,.,  ^-  g]  .^• 
he  was  privie  and  partie  to  the  wrong  :  but  in  respect  of  all  others  12  h'.  4.  21.  b. 
he  is  remitted,  and  shall  deraigne  the  first  warrantie.  And  so  note 
a  man  may  be  remitted  against  one,  and  not  against  another. 

A.  and  B.  joyntenants  be  intitled  to  a  reall  action  against  the 
heire  of  the  disseisor,  ^1.  cause  the  heire  to  be  disseised,  against 
whom  A.  and  B.  recover  and  sue  execution.  B.  is  remitted,  for 
that  he  was  not  partie  to  the  covine,  and  shall  hold  in  common 
with  A. ;  but  A.  is  not  remitted,  for  the  reason  that  Littleton 
here  sheweth. 

"Becatise  she  is  a  disseisor  esse."     Nota,  it  is  regularly  true,  fgl'T'o'^'  ^' 
that  a  feme  covert  cannot  be  a  disseisoresse  by  her  commande-  35  a'ss.5.' 

44  E.  3  9.  23.     13  A.SS.  1.     Temps  E.  1.  Waste,  128.     18  Ass,  p.  7.     21  E.  4.  53. 
21  H.  7.  35.     3  11.  4.  17.     (1  Roll.  Abr.  278.  6GG.     F.  N.  B.  117.  G.) 

mcnt 
X  and — cr,  L.  aud  M.  and  Eoh. 


357.  b.  358.  a.J    Of  Remitter.  L.  3.  C.  12.  Sect,  679-80. 

ment  or  procurement  precedent,  nor  by  her  assent  or  agreement 
subsequent;  but  by  her  actuall  entry,  or  proper  act,  she  may  be 
a  disseisoresse.  And  therefore  some  doe  hold  that  Littleton  must 
be  intended,  that  the  husband  and  wife  were  present  when  the 
disseisin  was  done ;  and  others  doe  hold  that  Littleton  is  good 
law,  albeit  she  were  absent ;  for  that  if  her  procurement  or 
agreement  be  to  doe  a  wrong,  to  cause  a  remitter  unto  her  in 
this  speciall  case,  she  shall  faile  of  her  end,  and  remitted  she 
shall  not  be  :  but  in  this  speciall  case  she  shall  be  holden  as  a 
disseisoresse  by  her  covine  and  consent  quatenus  to  hinder  the 
remitter.  And  here  it  appearcth,  that  albeit  the  husband  be  of 
covine  and  consent,  &c. ;  yet  if  the  wife  were  not  of  covine  and 
consent  also,  she  shall  be  remitted,  because,  as  Littleton  saith, 
there  was  no  default  in  the  wife. 


(4  Rep.  52.)  Sect.  679. 

A  LSO,  if  such  dlscontinuee  make  an  estate  of  freelioU  to  the  husband 
and  ivife  by  deed  indented  upon  condition^  scilicet,  reserving  to  the 
discontinuee  a  certaine  rent,  and  for  default  of  payment  a  re-entrie,and 
for  that  the  rent  is  behind  the  discontinuee  enter;  then  for  this  entrie  the 
'wife  shall  have  an  assise  of  novel  disseisin,  after  the  death  of  her  hus- 
band against  the  discontinuee,  because  the  condition  was  altogether 
taken  away,  inasmuch  as  the  wife  was  in  her  remitter;  yet 
the  husband  with  his  wife  J|^  cannot  have  an  assise,  be-  r358."j 
cause  the  husband  is  estopped,  ^c.  L     a-     J 

PI.  Com.  in  "]  T  is  hereby  to  be  observed,  that  the  wife  is  presently  remitted 

Amy  Towns-  J  .^^^  ^jj^t  the  conditions,  and  rents,  and  all  other  things  an- 

^2°R  \^'''*'^'  nexed  to,  or  reserved  upon   the    state    (that  is  vanished  and 

tit.  Remitter,  12.  defeated  by  the  remitter)  are  defeated  also  (1). 


!f;.VS,  Sect.  680,  681. 

A  LSO,  if  the  husband  discontinue  the  tenements  of  his  loife,  and  take 
backe  an  estate  to  him  for  life,  the  remainder  after  his  decease  to  his 
wife  for  terme  of  her  life;  in  this  case  this  is  no  remitter  to  the  ivife  during 
the  life  of  the  husband,  for  that  during  the  life  of  the  husband  the  ivife 
hath  nothing  in  the  freehold.  But  if  in  this  case  the  tvife  surviveth  the 
husband,  this  is  a  remitter  to  the  ivife,  because  a  freehold  in  laiv  is  cast 
upon  her  against  her  ivill  (maugre  le  seen  *  ).     And  inasmuch  as  she 

cannot 

*  soen — feme,  Pajyer  MS. 


(1)  VIII.  The  remitter  defeats  entirely  the  wrongful  estate,  and  consequently 
every  filing  annexed  to  or  isxuing  out  of  it.  See  ant.  Sect.  659.  665.  666.  and 
post.  Sect.  686,  687.  But  an  estate  made  of  the  land  itsalf  by  hrm  who  is 
remitted,  as  a  lease  for  years,  is  not  defeated  by  the  remitter. — See  Com.  Dig. 
tit.  Remitter,  15.  2. — [Note  olo.] 


L.  3.  C.  12.  Sect.  681,  682.  Of  Eemitter.  [358.  a.  358.  b. 

cannot  have  an  action  against  any  other  person,  and  against  her  selfe 
shee  cannot  have  any  action,  therefore  she  is  in  her  remitter.  For  in 
this  case,  although  the  wife  doth  not  enter  into  the  tenements,  yet  a 
stranger  which  hath  cause  to  have  an  action,  may  sue  his  action  against 
the  wife  for  the  same  tenements,  because  shee  is  tenant  in  law,  albeit 
that  she  be  not  tenant  in  deed. 


Sect.  681.  Jt,Ri6;l) 

fPOR  tenant  of  freehold  in  deed  is  he,  who,  if  hee  be  disseised  of  the 

freehold  (s'il  soit  disseisee  de  f  franktenement),  may  have  an  assise: 

but  tenant  of  freehold  in  law  before  his  entrie  \.  in  deed  shall  not  have  an 

assise.  And  if  a  man  X  be  seised  \\  of  a  certain  land,  §  and 
[  358."|  hath  issue  a  sonne  who  taketh  wife,  and  |Q^  the  father  dieth 
L    b.     J  seised,  and  after  the  sonne  dies  before  any  entrie  made  by  him 

into  the  land,  the  wife  of  the  sonne  shall  be  endowed  in  the 
land  and  yet  he  had  no  freehold  in  deed,  but  hee  had  a  fee  and  freehold 
in  law.  And  so  note,  that  a  praecipe  quod  reddat  may  has  well  be  main- 
tained against  him  that  hath  a  freehold  in  law,  as  against  him  that  hath 
the  freehold  in  deed. 

HERE  five  things  are  to  be  observed.     First,  that  a  remain-  is  n.  s.  j?.  ^ 
der  expectant  upon  an  estate  for  life  worketh  no  remitter,  ^      ep.  -j.  a.; 
but  when  it  falls  in  possession  ;  for  before  his  time  he  can  have 
no   action,  and  no  freehold  is  in  him.     Secondly,  though   the  ™j^^*=5-j^^~^J- 
woman  might  waive  the  remainder,  yet  because  she  is  presently  f^,^^206.'2G7. 
by  the  death  of  the  husband  tenant  to  the  pracipe,  it  is  within  Britton,  83.  b. 
the  rule  of  remitter,  and  her  power  of  waiver  is  not  materiall.  Fleta,  lib.  3. 
Thirdly,  that  a  freehold  in  law  being  cast  upon  the  woman  by  J^P-  ^^^;j_  ^_ 
act  of  law  without  anything  done  or  assented  to  by  her,  doth  230.  a."  ' 
remit  her,  albeit  she  be  then  sole  and   of  full  age.     Fourthly,  Cro  Car.  .338. 
that  a  pvKcipe  lyeth  against  one  that  hath  but  a  freehold  in  law.  Hob.  2u().) 
Fifthly,  that  a  woman  shall  be  endowed  where  the  husband  hath 
the  inheritance,  and  but  a  freehold  in  law,  as  hath  been  said  ia 
the  Chapter  of  Dower. 


Sect.  682. 

A  LSO,  if  tenant  in  taile  hath  issue  two  sons  of  full  age,  and  he  letteth 
the  land  tailed  to  the  eldest  son  for  term  of  life,  the  remainder  to 
the  younger  son  for  terme  of  his  life,  and  after  the  tenant  in  taile  dieth  ; 
in  this  case  the  eldest  sonne  is  not  in  his  remitter,  because  hee  tooke  an  estate 
of  his  father.  But  if  the  eldest  die  without  issue  of  his  bodie,  then  this 
is  a  remitter  to  the  younger  brother,  because  he  is  heire  in  taile,  and  « 

freehold 

t  son  added  in  L.  and  M.  and  Roh.         \\  in  fee  added  in.  L.  and  M.  and 
1  in  deed,  not  in  L.  and  M.  or  Roh.     Roh. 
X  hte  HOt  in  L.  and  M.  or  Roh.  §  and  not  in  L.  and  M.  or  Roh. 


358.  b.  359.  a.]    Of  Remitter.    L.  3.  C.  12.  Sect.  683,  684. 

freehold  in  laio  is  escheated  (A),  and  cast  upon  Mjh  hy  force  of  the 
remainder  (et  un  franktenement:  en  le  ley  est  escbeate,  et  jecte  sur  luy 
per  force  de  le  remainder)  and  there  is  none  against  tvhom  he  may  sue 
his  action*. 

[o]l2E.  4. 20.     rVF  this   opinion  is  [«]  Littleton  in  our  bookes;  and  of  this 
v/  sufficient  hath  bccne  said  in  the  next  Section  before.     See 
[//]  Sect.  684,       hereafter  [h]  some  explanation  hereof. 

6S5. 

(2Roii.Abr.  Bisect.  683.  [^f^-] 

TN  the  same  manner  it  is  where  a  man  is  disseised,  and  the  disseisor 
dieth  seised,  arid  the  tenements  descend  to  his  heii^e,  and  the  heir  of 
the  disseisor  make  a  lease  to  a  man  of  the  same  tenements  for  term  o/t 
life,  th^  remainder  to  the  disseisee  for  terme  of  life,  or  in  taile,  or  in 
fee,  X  the  tenant  for  life  dieth,  now  this  is  a  remitter,  to  the  disseisee,  Sfc. 
causa  qua  supra,  \.  ^c. 

AND  this  standeth  upon  the  same  reason  that  the  cases  in 
the   two   Sections  precedent   doe.     See   the  next   Section 
followinnc. 


Sect.  684. 

^"YOTU,  if  tenant  in  taile  infeoffe  his  sonne  and  another  hy  his  deed 
of  the  landintailed,  in  fee  and  livery  of  seisin  is  made  to  the  other 
according  to  the  deed,  \\  and  the  son  not  knoiving  of  this  agreeth  not  to  the 
feoffment  (et  le  fits  rien  conusant  de  ceo  ^  agreea  a  le  feoffment),  and 
after  hee  lohich  tooJce  the  livery  of  seisin  dieth,  and  the  son  doth  not 
occupie  the  land,  nor  taketh  any  profit  of  the  land  during  the  life  of  the 
father,  and  after  the  father  dieth,  noiv  this  is  a  remitter  to  the  sorine, 
because  the  freehold  is  cast  upon  him  hy  the  survivor  ;  and  no  default 
was  in  him,  because  lie  did  never  agree,  ^c.  in  the  life  of  his  father,  and 
he  hath  none  against  whom  he  may  sue  a  writ  o/formedon,  l^-c 

■-i=  ]  T  should  seemc  by  this  marke,  that  this  was  an  addition  to 
i    Littleton;  but  it  is  of  Littleton's  owne  worke,  and  agreeth 
•with  the  originall,  saving  the  originall  begun  this  Section  thus ; 
Also  if  tenant  in  taile,  etc. 

''By 

*  &c.  added  in  L.  and  M.  and  Roh.  §  Note— Also  L.  and  M.  and  Roh. 

f  Ms  added  in  L.  and  M.  and  lloh.  1|  and  not  in  L.  and  M.  or  Roh. 

X  and  added  in  L.  and  M.  and  Roh.  \  ne  added  in  L.  and  31  and  Roh. 
\.  i&c.  not  in  L.  and  M.  or  Roh. 


(A)  Here  the  word  "escheated"  is  rtscd  in  a  rjenercd  sense,  and  signifies  "fallen  to ;" 
iJioiiijh  not  hy  icajj  of  escheat  in  the  strict  legal  meaning  of  the  term.  Jlr.  Ritao  thinks 
the  translation  should  hare  been  "a  freehold  in  law  is  eschewed  (fallen  to)  and  east 
upon  him."     See  Ms  Introd.  p.\14:. 


L.  3.  C.  12.  Sect.  685.     Of  Kemitter.       [359.  a.  359.  b. 

'' J5y  Ms  deed,  &c."     Here  Littleton  materially  addeth  by  his  (Ant.  49.  b. 
deed  ;  for  if  a  man  intendeth  to  [b]  make  a  feoffment  hy  parol  .^^  femps  H  8 
to  A.  and  B.  and  he  and  B.  come  upon  the  land,  A.  being  Feoffments. 
absent,  and  make  livery  to  B.  in  the  name  both  of  B.  and  A.  and  Br.  72. 
to  their  heires,  this  shall  enure  onely  to  B. ;  for  neither  can  a  f!;  S'  ^'  f 

,  11-  IT  -1  J      1  10  E.  4.  1.  a. 

man  absent  take  livery,  nor  make  livery,  without  deed.  15  e.  4. 18. 

18  E.  4.  12.      22  H.  6.  12. 

'^  And  livery  of  seisin  is  made  to  the  other  according  to  the  deed,  (9  Rep.  136.) 
&c."     Note  livery  being  made  to  one  according  to  the  deede,  C^"*'- ^9.  b.) 
enureth   to  both,  because  the    deed  whereunto  the  livery  re- 
ferreth  is  made  to  both  ;  for  the  rule  is,  that    Verba  relata  hoc 
maxima  operantur per  referentiam  ut  in  eis  in  esse  videntur. 

t3  59. "I  0^  "  And  the  son  not  knowing  of  this  agreeth  not  to 
b.  J  the  feoffment."  Here  it  appeareth,  that  if  the  sonne 
be  conusant,  and  agreeth  to  the  feoffment,  &c.  this  is 
no  remitter  to  him.  And  therefore  if  the  feoffment  were  made 
by  deed  indented,  and  the  sonne  with  the  other  sealeth  the  coun- 
terpart, apd  then  the  feoffee  maketh  livery  to  the  other  accord- 
ing to  the  deed,  and  the  other  dieth,  the  son  is  not  remitted, 
because  he  was  conusant  of  a  feoffment,  and  agreed  to  the 
same ;  and  Littleton  saith  in  the  case  that  he  putteth,  that  there 
was  no  default  in  the  son,  because  he  agreed  not  to  the  feoffment 
in  the  life  of  the  father  ;  and  so  it  seemeth,  that  if  A.  be  seised  Vid.  Sect.  682. 
in  taile,  and  have  issue  two  sons,  and  by  deed  indented  betweene 
him  of  the  one  part,  and  the  sons  of  the  other  part,  maketh  a 
lease  to  the  eldest  for  life,  the  remainder  to  the  second  in  fee, 
and  dieth,  and  the  eldest  son  dieth  without  issue,  the  second  son 
is  not  remitted,  because  he  agreed  to  the  remainder  in  the  life 
of  the  father,  or  if  the  like  estate  had  been  made  by  parol,  if  in 
the  life  of  the  father  the  tenant  for  life  had  beene  impleaded,  and 
made  default,  and  he  in  the  remainder  had  beene  received,  and 
thereby  agreed  to  the  remainder,  after  the  death  of  the  father 
and  the  eldest  son  without  issue,  the  second  son  should  not  be 
remitted,  because  he  agreed  to  the  remainder  in  the  life  of  the 
father ;  all  which  is  well  warranted  by  the  reason  yielded  by 
our  author  in  this  Section. 


Sect.  685. 

f^OM  if  a  man  be  disseised  of  certaine  land,  and  the  disseisour  make  a 
deed  of  feoffement  whereby  he  infeoffeth  B.  C.  and  D.  and  liverie  of 
seisin  is  made  to  B.  and  C.  but  D.  was  not  at  the  liverie  of  seisin,  nor  ever 
agreed  to  the  feoffment,  nor  ever  would  take  the  profits,  ^c.  and  after  B. 
and  C.  die,  and  D.  survive  them,  and  the  disseisee  bringeth  his  zvrit  upon 
disseisin  in  the  per  against  D.  hee  shall  show  all  the  matter  (*  il  monstra 
tout  le  matter),  f  how  he  never  agreed  to  the  feoffement,  and  hee  shall 
discharge  himself e  of  damages,  so  as  the  demandant  shall  recover  no 

dammages 

*  il — mesme  celuy  D.,  L.  and  M.        f  and  added   in  L.   and  M.   and 
and  Roh.  Roh. 

Vol.  II.— 42 


359.  b.  360.  a.]  Of  Remitter.  L.  3.  C.  12.  Sect.  686,  687. 

dammages  against  Mm,  altJwugh  he  be  tenant  of  the  freehold  of  the  land. 
And  yet  the  statute  of  Gloucester,  |  cap.  1.  will,  that  the  disseisee  shall 
recover  dammage  in  a  writ  of  entrie  founded  upon  a  disseisin  (en  briefe 
de  e7itre,  foundue  sur  §  disseisin)  against  him  ivhich  is  found 
tenant.  And  this  is  a  proof e  in  the  other  case  Jl®^'  that  for  as-  r360.1 
much  as  the  issue  in  taile  came  to  the  freehold,  and  not  by  this  L  ^-  J 
act  (et  II  nemy  per  son  fait)  nor  by  his  agreement,  but  after  the 
death  of  his  father  (f  mes  apres  la  mort  son  pier),  therefore  this  is  a 
remitter  to  him,  inasmuch  as  he  cannot  sue  an  action  of  formedon 
against  any  other  person,  ^c. 

(8Rep.  1.  rrHIS   case   standeth   upon   the  same   reason   that  the   next 

Tet  a'?69^'38i.   ^  precedent  case  doth. 

115.  a.  Plo.  365.  "  Against  him  tchich  is  found  tenant,  &c."  Here  it  appeareth, 
that  acts  of  parliament  are  to  be  so  construed,  as  no  man  that  is 
innocent  or  free  from  injurie  or  wrong,  be  by  a  literall  con- 
struction punished  or  endamaged ;  and  therefore  in  this  case, 
albeit  the  letter  of  the  statute  is  generally  to  give  dammages 
against  him  that  is  found  tenant,  and  the  case  that  Littleton  here 
putteth  D.  being  survivor,  is  consequently  found  tenant  of  the 
land ;  yet  because  he  waived  the  estate,  and  never  agreed  to  the 
feoffment,  nor  tooke  any  profits,  he  shall  not  be  charged  with 
the  dammages. 


gRoiLAbr.  Sect.  686,  687. 

A  LSO,  if  an  abbot  alien  the  land  of  his  house  to  another  in  fee,  and 
the  alienee  by  his  deed  charge  the  land  with  a  rent-charge  in  fee,  and 
after  the  alienee  infeoffe  the  abbot  with  licence,  to  have  and  to  hold  to  the 
abbot  and  to  his  successors  forever,  and  after  the  abbot  die,  and  another 
is  chosen  and  made  abbot  ;  in  this  case  the  abbot  that  is  the  successor, 
and  his  covent,  are  in  their  remitter,  and  shall  hold  the  land  discharged, 
because  the  same  abbot  cannot  have  an  action,  nor  a  writ  of  entre  sine 
assensu  capituli,  of  the  same  land  against  any  other  person  (pur  ceo  que 
mesme  I'abbe,  ne  poit  aver  ascun  action,  \  ne  briefe  d' entre  sine  assensu 
capituli,  de  mesme  la  terre  envers  nul  auter  person).  (1) 


Sect.  687. 

TNthe  same  manner  it  is,  where  a  bishop  or  a  deane,  or  other   such 
person  alien,  ^c.  without  assent,  ^c.  and  the  alienee  charge  the  land, 

X  cap.  1.  not  in  L.  and  M.  or  RoTi.         \\  ceo  added  in  L.  end  M.  and Rth. 
§  le  novel  added  in  L.  and  M.  and         f  mes — que,  L.  and  M.  and  Roh. 
Roh.  ^  ne  de,  L.  and  31.  and  Roh. 


(1)  Here  Ltttletonhegms  to  treat  of  remitter  to  bodies  politic. — [Note  314.] 


L.  3.  C.  12.  Sect.  688.       Of  Remitter.        [360.  b.  361.  a. 

cj'c.  and  after  the  bishop  takes  hache  an  estate   of  the  same 

[3 60."]   land  hylieence,  to  him  and  his  Jg®"'  suceessours,  andaftcrtJw 
b-     1   bishop  dieth  ;  his  successor  is  in  his  remitter,  as  in  right  of 
his  church,  and  shall  defeat  the  charge^  ^c  causa  qua  supra. 

OUR  author  having  ppokcn  of  remitters  to  singular  or  naturall 
persons,  as  issues  in  taile,  and  to  feme  coverts,  and  to  their 
heires,  and  to  them  in  reversion  or  remainder,  and  their 
heires ;  now  he  speaketh  of  remitters  to  bodies  politike  and  in- 
corporate, as  to  abbots,  bishops,  deanes,  &c.  And  as  discents 
doe  remit  the  heire  which  comes  in  the  per,  so  succession  doth 
remit  the  successor,  albeit  he  cometh  in  the  post.  And  so  in 
other  cases  where  the  issue  in  taile  of  full  age  shall  be  remitted, 
there  in  the  like  case  shall  the  successor  be  remitted  also,  and 
defeat  all  meane  charges  and  incumbrances. 

"  Wilh  licence,"  t£-c.  That  is,  of  the  king  and  the  lords  im- 
mediate and  mediate,  to  dispense  with  the  statutes  of  mortmaine  ; 
whereof  see  more  before.  Sect.  140. 


Sect.  688. 

ALSO,  if  a  man  sue  a  false  action  against  tenant  in  taile,  as  if  one 
will  sue  against  him  a  writ  of  entrie  in  the  post,  supposing  by  his 
writ  that  the  tenant  in  taile  had  not  his  entrie  but  by  A.  of  B.  who  dis- 
seised the  grandfather  of  the  demandant,  and  this  is  false,  and  he  re- 
covereth  against  the  tenant  in  taile  by  default,  and  such  execution,  and 
after  the  tenant  in  taile  dieth,  his  issue  may  have  a  ivrit  of  formedon 
against  him  ivhich  recovereth;  and  if  he  will  plead  the  recoverie  against 
the  tenant  in  taile,  the  issue  may  say,  that  the  said  A.  of  B.  did  not  dis- 
seise the  grandfather  of  him  which  recovered,  in  manner  as  his  writ  sup- 
pose, and  so  he  shallfalsifie  his  recovery  (et  issint  il  fauxera  *  le  recoverie). 
And  admit  this  were  true,  that  the  said  A.  of  B,  did  disseise  the  grand- 
father of  the  demandant  which  recovered,  and  that  after  the  disseisin, 
the  demandant,  or  his  father,  or  his  grandfather  by  a  deed 

t 361.1  had  released  to  the  tenant  in  taile  all  the  right  which  hee  had 
'I-  J  in  the  g^^  land,  ^c.  and  notivithstanding  tMs  hee  suetli  a  writ 
of  etitrie  in  the  post  against  the  tenant  in  taile,  in  manner  as 
is  aforesaid,  and  the  tenant  in  taile  plead  to  him  that  the  said  A.  of  B. 
did  not  disseise  his  grandfather,  in  such  manner  as  his  tvrit  suppose  ; 
and  upon  this  they  are  at  issue,  and  the  issue  is  found  for  the  demandant, 
whereby  he  hath  judgment  to  recover,^  and  sueth  execution;  and  after  the 
tenant  in  taile  dieth,  his  issue  may  have  a  writ  of  formedon  against  him 
that  recovered;  and  if  he  will  plead  the  recovery  by  the  action  tried 
against  his  father  §  who  was  tenant  in  taile,  then  he  may  sheiv  and  plead 
the  release  made  to  his  father,  and  so  the  action  which  was  sued,  feint  in 

law'\. 

''HE 

*  le — son,  L.  and  M.  and  Roh.  f  &c.    added   in   L.    and   M.    and 

§  \oho  ua^,  not  in  L.  and  M.  or  Roh.     Roh. 


361.  a.  361.  b.]    Of  Kemitter.  L.  3.  C.  12.  Sect.  689,  690. 

"  TTE  recoverefli  ar/ainst  tlie  tenant  in  taile  h\j  default.'^     Lit- 

[c]  12  E.  4. 19.  -^-^  tleton  aidetli  (by  default)  because  if  the  [r]  recovery  passed 

1'^  ?■  "^^  ^-  upoQ  aa  issue  tried  by  verdict,  he  shall  never  falsifie   in  the 

7  II  4.  17.  '  point  tried,  because  an  attaint  might  have  been  had  against  the 

U  II.  7.  10,  11.  jurors;  and  albeit  all  the  jurors  be  dead,  so  as  the  attaint  doe 

28  Ass.  32.  52.  faile,  yet  the  issue  in  taile  shall  not    falsi6e  in  the  point  tried, 

10  ILd.  5.  which,  until!  it  be  lawfully  avoided,  pro  veritate  accipitiir.     As 

19  H.  6.  39.  if  the  tenant  in  taile   be  impleaded  in  a,  formfdon,  and  he  tra- 

liraoke,  tit.  verseth  the  gist,  and  it  is  tried  against  him,  and  thereupon  the 

RecoveHe  ^55.  demandant  recover ;  in  this  case   the  issue  in   taile  shall  not 

22  H.  6.  23.  falsifie  in  the  point  tried;  but  he  may  falsifie  the  recovery  by 

;u  H.  (5.  2.  any  other  matter;  as  that  the  tenant  in  taile  might  have  pleaded 

^6  II  6  ^"'  ^  collatcrall  warrantie,  or  a  release,  as   Littleton  here  putteth 

Fauxef.de  the  case,  or  to  confesse  and  avoid  the  point  tried.     Ani  Lit- 

Reeoverie,  27.  tleton  s  case  holdeth  not  only  in  a  recovery  by  default,  whereof 

iVlolfRe  ^®  speaketh,  but  also  upon  a  nihil  dicet,  or  confession  or  de- 

443.)  murrer. 


Sect.  689. 

AXD  it  secmeth,  that  a  faint  action  is  as  much  to  say  in  English  a 
"^  fained  action,  that  is  to  say  such  an  action  as  albeit  the  words  of  the 
writ  be  true,  yet  for  certaine  causes  hee  hath  no  cause  nor  title  by  the  law 
to  recover  by  the  same  action.  And  a  false  action  is,  where  the  words  of  the 
writ  bee  false.  And  in  these  two  cases  aforesaid,  if  the  case  ivere 
such,  that  after  such  recovery,  and  execution  J^°*  thereupon  r361."| 
done,  the  tenant  in  tayle  had  disseised  him  that  recovered,  and  L  "•  J 
thereof  died  seised,  lohereby  the  land  descended  to  his  issue,  this 
is  a  remitter  to  the  issue,  and  the  issue  is  in  by  force  of  the  taile  ;  and  for 
this  cause  I  have  put  these  two  cases  j^recedent,  to  enforme  thee  {my  sonne) 
that  the  issue  in  taile  by  force  of  a  discent  made  unto  him  after  a  recovery 
and  execution  made  against  his  ancestour  (apres  un  recovery  et  e.xecutioa 
*  fait  envers  son  auncester),  may  be  as  well  in  his  remitter,  as  he  should 
be  by  the  discent  made  to  him  after  a  discontinuance  made  by  his  ances- 
tour of  the  entayled  lands  by  feoffment  in  the  countrie,  or  otherivise,  ^"C. 

HERE  Littleton  explaineth  what  a  faint  action  is,  and  what  a 
false  action  is,  which  is  plaine  and  perspicuous.  And  here 
it  is  to  be  observed,  that  a  remitter  may  be  had  after  a  recovery 
upon  a  faint  action  by  a  disseisin  and  a  discent,  as  well  as  by  a 
discent  after  a  discontinuance  by  a  feoffment,  &c. 


Sect.  690. 

A  LSO,  in  the  cases  aforesaid,  if  the  case  ivere  such,  that  after  that 

the  demandant  have  judgment  to  recover  against  the  tenant  i7i  tayle, 

and  the  same  tenant  in  tayle  dieth  before  any  execution  had  against  him, 

whereby  the  tenements  descend  to  his  issue,  and  he  ivho  recoverethsueth  a 

scire 

*  ent  added  in  L.  and  M.  and  Roh. 


L.  3.  C.  12.  Sect.  690.     Of  Kemitter.      [361.  b.  362.  a. 

scire  facias  out  of  the  judgement  to  have  execution  of  the  judgement 
against  the  issue  in  taile,  the  issue  shal plead  the  matter  as  aforesaid; 
and  so  prove  that  the  f  said  recovery  was  false  or  faint  in  law,  and  so 
shall  harre  him  to  have  execution  of  the  judgement  %. 

HERE  it  appeareth,  that  if  a  judgement  be  given  against  a  28  Ass.  Z2. 
tenant  in  taile  upon  a  faint  or  false  action,  and  tenant  in  taile  34  Ass.  pi.  7. 
die  before  execution,  no  execution  can  be  sued  against  the  issue  j^  ^  ^-  ^^^'^^' 
in  tayle.   But  if  in  a  common  recoverie  judgement  bee  had  against  7  h.  4. 17.' 
temint  in  tayle  where  he  voucheth,  and  hath  judgement  to  recover  33  E.  3. 
over  iu  value,  albeit  the  tenant  in  tayle  dyeth  before  execution,  f|'Tr'^(f",'!f"  ^^' 
yet  the  recoveror  shall  execute  the  judgement  against  the  issue  in  jq  j^'  g_'  g_  ' 
tayle  in  respect  of  the  intended  recompence  ;  and  for  that  it  is  the  12  E.  4.  30. 
common  assurance  of  the  realme,  and  is  well  warranted  [</]  by  ]^  ^•'^-  H- 
our  bookes,  and  was  not  invented  by  justice   Choke,  who  was  a  pjgj.  g'^g 

grave  and  learned  judge  in  the  time  of  E.  4.  (as  some  Lib.  fol.  1O6. 
r362.1   hold  by  tradition);  but  it  may  bee  fl@°"  that  it  was  Shelley's  case, 
1_     a.     J   upon  former  authorities  and  opinions  of  judges  dis-  ,q^^  "^'j.  |gg 

covered  by  him,  assented  unto  by  the  rest  of  the  judges,  pio.  14.) 

See  hereafter 
Sect.  709.     15  E.  3.  Briefe,  324.     42  E.  3.  53.     44  E.  3.  21.     48  E.  3.  11.     1  E.  4.  5. 
5  E.  4.  2.     [d]  12  E.  4.  20.     Dier,  23  Eliz.  376.  Lib.  10.  M.  37,  38.  in  Mary  Port- 
ington's  case. 

If  a  recoverie  bee  had  against  tenant  for  life  without  consent  5  Ass.  3.5  E.  3. 
or  covine,  though  it  be  without  title,  and  execution  be  had,  and  Eptre  Cong.  42. 
tenant  for  life  dieth,  the  reversion  or  remainder  is  discontinued,   ^g"  gir^wiiiiain 
so  as  he  in  the  reversion  or  remainder  cannot  enter;  but  if  such  Peibam's  case. 
a  recoverie   be  had  by  agreement  and   covine  betweene  the  de-  (6  Rep.  8.  b. 
mandant  and  the  tenant  for  life,  then,  as  hath  beene  said,  it  is  a  ^^^-  '^^^-  '^■'> 
forfeiture  of  the  estate  for  life,  and  he  in  the  reversion  or  re- 
mainder may  enter  for  the  forfeiture.     So  it  is  if  the  tenant  for 
life  suffer  a  common  recovery  at  this  day,  it  is  a  forfeiture  of  his 
estate;  for  a  common  recovery  is  a  common  conveyance  or  as- 
surance, whereof  the  law  taketh   knowledge.      Since  Littleton 
wrote,  there  were  two  statutes  [e]  made  for  the  preservation  of  re-  [-g-j  32  n.  s. 
mainders  and  reversions  expectant  upon  any  manner  of  estate  for  cap.  31. 
life;  the  one  in  32  //.  8.  the  other  in  14  EUz.  :  but  32  //.  8.  }^Eliz  cap.  8. 

'     ,      ,  .  1  ,  ,      r>         ^•c  •  (sect.  0(0. 

extended  not  to  recoveries,  when  tenant  tor  lire   came   in  as  10  Rep.  49.) 
vouchee,  &c.  and  therefore  that  act  is  repealed  by  14  EHr..  and 
full  remcdie'  provided  for  preservation  of  the  entrie  of  them  in 
reversion  or  remainder.     But  the  statute  of  14  Eliz.  extendeth 
not  to  any  recovery,  unless  it  be  by  agreement  or  covine.     Se- 
condly, [/]  if  there  be  tenant  for  life,  remainder  in  taile,  the  [-yj  i.ih.  3. 
reversion  or  remainder  in  fee,  if  tenant  for  life  be  impleaded  by  fol. cn.fii. 
acreemcnt,  and  he  vouche  tenant  in  taile,  and  he  vouch  over  the  L»DcolneCol- 

fc  '  ,.ii,i  I  •  •     ^       •      lego  case. 

common  vouchee,  this  shall  barre  the  reversion  or  remainder  in 
fee,  although  he  in  the  reversion  or  remainder  did  never  assent 
to  the  recovery;  because  it  was  not  the  intent  of  the  act  to  ex- 
tend to  such  a  recovery,  in  which  a  tenant  in  taile  was  vouched  ; 
for  he  hath  power  by  common  recovery,  if  he  were  in  possession, 
to  cut  oif  all  reversions  and  remainders.  And  so  if  tenant  for  life 
had  surrendered  to  him  in  remainder  in  taile,  he  might  have 
barred  the  remainders  and  reversions  expectant  upon  his  estate. 
Thirdly,  where  the  proviso  of  that  act  speaketh  of  an  assent  of 

record 

I  said  not  in  L.  and  M.  or  Roh.  %  &c.  added  in  L.  and  M.  and  Roh. 


362.  a.  362.  b.]       Of  Remitter.        L.  3.  C.  12.  Sect.  691. 

record  by  him  ia  reversion  or  remainder,  it  is  to  be  understood, 
that  such  assent  must  appeare  upon  the  same  record,  either  upon 
a  voucher,  aid prier,  receit,  or  the  like ;  for  it  cannot  appeare  of 

(2  R'.ll.  Abr.        record,  unlesse   it  be  done  in  course  of  law,  and  not   by  any 

23. 146.)  extrajudicial!  eutrie,  or  by  memorandum. 


Sect.  691. 

A  LSO,  if  tenant  in  taile  discontinue  the  taile,  and  dieth,  and  his  issue 
hringeth  his  writ  of  formedon  against  the  discontinuee  [being  tenant 
of  the  freehold  of  the  land)  and  the  discontinuee  plead  that  he  is  not 
tenant,  hut  utterly  disclay metlL  from  the  tenancy  in  the  land ;  in  this 
case  the  judgement  shall  be,  that  the  tenant  goeth  ivithout  day,  and  after 
such  judgement  the  issue  in  the  tayle  that  is  demandant  may  enter  into 
the  land,  notwithstanding  the  discontinuance,  and  by  such  entrie  hee 
shall  be  adjudged  in  his  remitter.  And  the  reason  is,  for  that  if  any 
man  sue  a  praecipe  quod  reddat  against  any  tenant  of  the  freehold,  in 
which  action  the  demandant  shall  7iot  recover  damages,  and  the  tenant 
pleads  nontenure  *  or  otherwise  disclaime  in  the  tenancic,  the  demand- 
ant cannot  averre  (ne  poit  averrer)  his  ivrit,  f  and  say  that  hee  is  tenant, 
as  the  writ  supposeth.  And  for  this  cause  the  demandant  after  that 
judgement  is  given  that  the  tenant  shall  goe  ivithout  day,  may  enter 
into  the  tenements  demanded,  the  which  shall  hee  as  great  an  advantage 
to  him  in  laiv,  as  if  he  had  judgement  to  recover  against  the  tenant,  and 
by  such  entrie  hee  is  in  his  remitter  by  force  of  the  entaile.  But  where 
the  deynandant  shall  recover  damages  against  the  tenant,  there  the  de- 
mandant may  averre,  that  he  is  tenant,  as  the  writ  supposeth,  and  that 
for  the  advantage  of  the  demandant  to  recover  his  dammages,  or  other- 
wise he  shall  not  recover  his  dammages,  which  are  |  or  tvere  given  to 
him  by  the  law. 

(Dnct.  Pla.  133.)  Tl  ERE  it  appcarcth,  that  upon  the  plea  of  nontenure,  cr  of 

H6^ll*6^29  disclaimer  of  the  tenant  in  a  formedon  in  the  disceuder, 

0  E.  3.8.    *  albeit  the  expresse  judgement  be  that  the  tenant  shall  goe  with- 

4  E.  4.  38.  out  day,  yet  in  judgement  of  law  the  demandant  may  enter  accord- 
(Z  lu-p.  26.)  jjjg  ^Q  ^}jg  ^jjjg  (^f  iiig  ^j-it,  and  bee  seised  in  tayle,  notwithstand- 
V  id  e  Brae  ton,  iig  <-be  discontinuance.  And  here,  Litdeton  saith,  the  demandant 
lib.  5.  fol.  431,  shall  be  adjudged  in  his  remitter  ;  where  he  taketh  remitter  in 
432.  A  414.  a  large  sense:  for  in  this  case  the  demandant  hath  not  two 
Britton,  cap.  .  ^.j^j^^.^^  ^^^  j^^^^j^  ^^^^-^^^  ^^^  antii  nt  right,  and  restored  to  the  same 

by  course   of  law :  and  so  remitter  here  is  taken  for  a  recon- 
tinuance  of  the  right. 

(^^"In  icht'rh  action  thedim'tnd<int  aludl  not  recover   r362."| 

damages."  Here  is  to  bee  observed,  that  in  such  aprse-   L     b.      J 

cijye  where  the  demandant  is  to  recover  dammages,  if 

[/]13n.  7. 28.    the  tenant  pleade  non-tenure   or  disclaime,  [/]  there  the   de- 

86  n.  6.29.  mandant  may  averre  him  to  be  tenant  of  the  land,  as  his  writ 

I^-eWV"  suppose  for  the  benefit  of  his  damages,  which  otherwise  he  should 

5  e'.4.'i.  'be.  3.8.(7  Rep.  40.) 

lose, 

*  or — but,  L.  and  M.  and  Roh.  |  or  were  not  in  L.  and  M.  or  Roh. 

■\  and  say,  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  12.  Sect.  692.      Of  Remitter.       [362.  b.  363.  a. 

lose,  or  pray  judgement  and  enter,    [f/]  But  where  no  damages  [g-]  8  E.  3.  431. 
are  to  bee  recovered,  as  in  a/onnedon  in  the  discender,  and  the  24  E.  3.  9.^  ^ 
like,  there  hee  cannot  averre  him   tenant,  but  pray  his  judge-  yn.'e.lT. 
ment  and  enter,  for  thereby  hee  hath  the  effect  of  his  suite  :  Et  b  E.  4.  1. 
frustrdfitper  plura,  quod  fieri  potest  per  pamior  a.  Doet*^  Pll^  49  ) 

^^  Averrer."  To  averre  or  avouch,  or  verifie,  verificare, 
whereof  commeth  verlficatio,  an  averment;  and  is  so  said  as  well 
in  English  as  in  French ;  and  is  two-fold,  viz.  generall  and  par- 
ticular. A  generall  averment,  which  is  the  conclusion  of  every 
plea  to  the  writ,  or  in  barre  of  replications  and  other  pleadings  (Ant.  303.  a.) 
(for  counts  or  avowries  in  nature  of  counts  need  not  be  averred) 
containing  matter  affirmative,  ought  to  bee  averred,  et  hoc 
paratus  est  verificari,  &c.  Particular  averments  are,  as  when 
the  life  of  tenant  for  life,  or  tenant  in  taile,  are  averred;  and 
there,  tho'  this  word  (verificare)  be  not  used,  but  the  matter 
avouched  and  affirmed,  it  is  upon  the  matter  an  averment. 
And  an  averment  containeth  as  well  the  matter  as  the  forme 
thereof. 

"  That  the  tenant  shall  goe  without  day."    Quod  tenens  eat  sine  '^?.  F^'l^-'^ ■   ^ 
die.     This  is  the  entrie  of  the  judgement  in  that  case,  that  the  ^^'^-  265.  ^i"-) 
tenant  shall  goe  without  day,  that  is,  to  be  discharged 

[363.1   of  further  attendance;  and  this  isB®*  sometimes  finall 
,a.     J   for  thataction,  whereof  Littleton  here  putteth  an  exam- 
ple ;  and  sometime  temporarie,  whereof  Littleton  also 
hath  put  an  example :  as  when  excommengement  is  pleaded  in  Vid.  Sect.  201. 
disabilitie  of  the  plaintiffe  or  demandant,  there  the  award  is,  that  (^  ^*^P-  ^^-^ 
the  tenant  or  defendant  shall  goe  without  day ;  and  yet  when  the 
demandant  or  plaintiife  have  purchased  his  letters  of  absolution, 
upon  shewing  them  to  the  court,  he  may  have  a  resummons  or 
reattachment  to  recontinue  the  cause  againe.     But  it  is  to  be 
knowne,  that  when  judgement  is  given  for  the  tenant  or  defendant  3  H.  4.  2.  11. 
upon  a  plea  in  barre,  or  to  the  writ,  &c.  the  judgement  is  all  one, 
viz.  quod  tenens,  or  defendens  eat  inde  sine  die,  and  shall  have 
reference  to  the  nature  and  matter  of  the  plea,  and  so  be  taken 
either  to  goe  in  barre,  or  to   the  writ.     So  when  judgement  is  (Ant.  135.  b.) 
given  against  the  plaintiffij,  either  in  barre  of  his  action,  or  in 
abatement  of  his  writ,  &c.  the  judgement  is  all  one,  viz.  nihil 
capiat  per  hreve  ;  and  it  appeareth  by  the  record  whether  the  plea 
did  goe  in  barre,  or  to   the  writ.     And  the  cause  of  the  judge- 
ment is  never  entred   in  the  record  in  any  case;  for  that  upon 
consideration  had  of  the  record  it  appeareth  therein. 


OeCl.    \JO^.  1  Roll.  Abr.  631. 

rDoct.  Pla.  133.)     (3  Lev.  330.) 

A  LSO,  if  a  man  be  disseised,  and  the  disseisor  die,  his  heire  being  in 
hj  discent,  now  the  entrie  of  the  disseisee  is  taken  away  ;  and  if  the 
disseisee  bring  his  writ  of  entrie  sur  disseisin  in  the  per,  against  the  heire, 
and  the  heire  disclaime  in  the  tenancie,  ^c.  the  demandant  may  averre  his 
writ  that  hee  is  tenant  as  the  writ  suppose,  if  he  will,  to  recover  his  dam- 
mages:  but  yet  if  hee  will  relinquish  the  averment,  ^c.  he  may  lawfully 
enter  into  the  land  because  of  the  disclaimer^  notwithstanding  that  his 

entrie 


363.  a.  363.  b.]         Of  Remitter.    L.  3.  C.  12.  Sect.  693. 

entrie  before  was  taJcen  away.  And  thin  was  adjudged  before  my  mas- 
ter sir  R.  Danby,  late  chief e  justice  of  the  common  place,  ^c.  and  his 
companions,  ^c. 

"  A  LSO  if  a  man  he  disseised,  &c."     Albeit  in  tbis  case,  and 
"^  in  tbe  case  before,  the  entrie  of  the  demandant  in  his  owne 
act,  and  tbe  demandant  bath  no  expresse  judgement  to  recover, 
36  H.  6.  f.  29.     yet  shall  be  be  remitted ;   because  he  in  judgement  of  the  law 
shall  be  in  according  to  tbe  title  of  bis  writ,  and  by  bis  entrie 
defeat  tbe  discontinuance,  and  consequently  is  remitted  to  bis 
antient  estate. 
5  E.  4.  41.  "  Sir  Robert  Danby,"  knight,  was  a  gentleman  of  an  ancient 

4  E.  4.  38.  and  faire   descended  family,  and  cbiefe-justice  of  tbe  court  of 

common-pleas  ;  a  grave,  reverend,  and  learned  judge, 
0:tr  of  whom  our  author  speaketh  here  with  very  great  f  3 6 3 . 1 
reverence,  as  you  may  perceive.     And  here  is  to  be  [_     b.     J 
noted  how  necessarie  it  is,  after  tbe  example  of  our 
author,  to  observe  tbe  judgements  and  resolutions  of  tbe  sages 
of  the  law. 


Sect.  693. 


A  LSO,  where  the  entrie  of  a  inan  is  congeable,  although  that  he  taJces 
an  estate  to  him  when  hee  is  of  full  age  for  terme  of  life,  or  in  taile, 
or  in  fee,  this  is  a  remitter  to  him,  if  such  taking  of  the  estate  be  not  by 
deed  indented,  or  by  matter  of  record,  which  shall  conclude  or  estop 
him  (que  *  concludera  ou  estoppera).  For  if  a  man  be  disseised,  avd 
takes  backe  an  estate  from  the  disseisor  ivithout  deed,  or  by  deed  poll, 
tins  is  a  remitter  to  the  disseisee  ( Car  si  home  soit  disseisie,  et  t  reprent 
estate  de  le  disseisor  sans  fait,  on  per  fait*  polle,  ceo  est  %  un  remitter 
al  disseisee),  1|  S^c. 

29  Ass.  p.  26.  TTERE  appeareth  a  diversitie  betweene  a  right  of  entrie  and 

43  Ass.  p.  3.  XI  a  right  of  action  ;  for  if  a  man  of  full  age  having  but  a  right 

^H^e^  19*^  ^^  action  takcth  an  estate  to  him,  bee  is  not  remitted  :  but  where 

40  E.  3.  43.  bee  bath  a  right  of  entrie,  and  taketh  an  estate,  he  by  his  entrie 

(Sect.  683.)  is  remitted,  because  his  entrie  is  lawfull.     And  if  the  disseisor 

?k°\'ll^\,  infeoflFe  tbe  disseisee  and  others,  tbe  disseisee  is  remitted  to  tbe 

350.  a.)  "    '  whole,  for  his  entrie  is  lawfull :  otherwise  it  is  if  his  entrie  were 
taken  away. 

8  R.  2.  Quar.  "  Where  the  entrie  is  congeable."    A.  is  disseised  of  a  manner, 

imp.  199.  wbereunto  an  advowson  is  appendant,  an  estranger  usurpes  to  the 

8  H  6^17  '  advowson,  if  the  disseisee  enter  into  the  mannor,  the  advowson  is 

21  H.  6.  2.  recontinued  againe,  which  was  severed  bj  the  usurpation.    And 

3  H.  4.  8.  go  it  is  if  tenant  in  tayle  be  of  a  mannor  wbereunto  an  advow- 

3"H  6  is'^^  son  is  appendant,  tbe  tenant  in  taile  diseontinueth  in  fee,  the 
26  H.  8.  4.     F.  N.  B.  36.  f.  &  35.  b.     (3  Rep.  3.  b.     Sect.  661.) 

discontinuee 


Hoh. 


*  luy  added  in  L.  and  M.  and  Roh.         %  un — bon,  L.  and  M.  and  Roh. 
"}■  reprent — ent  prent,  i.  ancZ  i¥.  and         \\  &c.  not  in  L.  and  M.  or  Roh. 


L.  3.  C.  12.  Sect.  694,  695.  Of  Kemitter.  [363.  b.  364.  a. 

discoatinuee  granteth  away  the  advowson  in  fee,  and  dieth,  the 
issue  in  tayle  recontinueth  the  mannor  by  recoverie,  he  is  thereby 
remitted  to  the  advowson ;  and  in  both  cases  hee  that  right  hath 
shall  present  when  the  church  becommeth  voyd. 

The  patron  of  a  benefice  is  outlawed,  and  the  church  becom-  22  Ass.  p.  33. 
meth  voyd,  an  estranger  usurpeth,  and  six  moneths  passe,  the  xheobafd  Grin- 
king  doth  recover  in  a  quare  impedlt,  and  remove  the  incumbent,  vile. 
&c.  the  advowson  is  recontinued  to  the  rightful!  patron.     And  (3  Rep.  3.) 
so  note  a  diversitie  botweene  a  reeontinuance  and  a  remitter; 
for  a  remitter  cannot  be  properly,  unlesse  there  be  two  titles; 
but  a  reeontinuance  may  be  where  there  is  but  one. 

"i?y  deed  indented,  &c."     Here  it  appeareth  that  if  the  dis-  13  H.  4.  5. 
seisor  by  deed  indented  make  a  lease  for  life,  or  a  gift  in  taile,  ^  ^-  ^;  g  • 
or  a  feoffment  in  fee,  whereunto  liverie  of  seisin  is  requisite  ;  12  II.  -i.  19. 
yet  the  deed  indented  shall  not  suffer  the  liverie  made  according  35  Ass.  8. 
to  the  forme  and  effect  of  the  indenture,  to  work  any  remitter  ^^  ^^^-  ^j 
to  the  disseisee,  but  shall  estop  the  disseisee  to  claime  his  former  43  ^^3. 17. 
estate ;  and  if  the  disseisor  upon  the  feoffment  doth  reserve  any  Parker's  case, 
rent  or  condition,  &c.  the  rent  or  condition   is  good;  and  the  l"^^.^"  ^ jq 
reason  wherefore  a  deed  indented  shall  conclude  the  taker  more  21  H.  6.  2. 
than  a  deed  poll,  is,  for  that  the  deed  poll  is  only  the  deed  of  Per  Paston. 
the  feoffor,  donor,  and  lessor ;  but  the  deed  indented  is  the  deed  8  ^^- ^-^.^g^^j.^ 
of  both  parties,  and  therefore  as  well  the  taker  as  the  giver  is  ('^'roH.  Abr. 
concluded.  863. 878. 

''  Or  hy  matter  of  record^     As  by  fine,  deed  indented  and  in- 
rolled  (A),  and  the  like. 


[^f^-]  B^  Sect.  694. 

A  LSO,  if  a  man  let  land  for  terme  of  life  to  another,  who  alieneth  to 
another  in  fee,  and  the  alienee  make  an  estate  to  the  lessor,  this  is  a 
remitter  to  the  lessor,  because  his  entrie  was  congeable,  *  ^^e. 

This  is  evident  enough  upon  that  which  hath  beene  said. 


Sect.  695.  ("«^-  256.) 

A  LSO,  if  a  man  he  disseised,  and  the  disseisor  let  the  land  to  the  dis- 
seisee hy  deed  pol,  or  without  deed,  for  terme  of  yeares,  hy  which  the 
disseisee  entreth,  this  entrie  is  a  remitter  to  the  disseisee.  For  in  such  case 
where  the  entrie  of  a  man  is  congeable,  and  a  lease  is  tnade  to  him,  albeit 
that  he  claimeth  by  ivords  in  paiis,  that  he  hath  estate  hy  force  of  such 
lease,  or  saith  openly,  that  he  claimeth  nothing  in  the  land  but  by  force  of 

such 

*  &c.  not  in  L.  and  M.  or  Roh. 


(A)    Vid.  ante  251.  6.  where  lord  Coke  makes  a  dtatinction  between  a  matter  of  record,  as 
a  fine,  and  a  deed  recorded,  as  a  deed  inroUed.     See  also  ante  362.  a. 


364.  a.  364.  b.J        Of  Remitter.   L.  3.  C.  12.  Sect.  696, 

audi  lease,  yet  this  is  a  remitter  to  him,  for  that  such  disclaimer  in  paiis 
(tiel  t  disclaimer  en  le  paiis)  is  nothing  to  the  purpose.  But  if  hee  dis- 
claime  in  court  of  record,  that  he  hath  no  estate  but  by  force  of  such 
lease,  and  not  otherwise,  then  is  he  concluded  (Mes  s'il  %  disclaimer  en 
court  de  record,  que  il  ||  n'ad  estate  forsque  per  force  de  tiel  lease,  et 
nemy  auterment,  donque  il  est  conclude,)  ^c, 

(3  Kop.  25.)  TJ  ERE  appeareth  a  diversitie  between  a  claim  in  paiis  of  an 
-A-L  estate,  and  a  claime  of  record,  for  a  claim  in  paiis  shall  not 
hinder  a  remitter.  Otherwise  it  is  of  a  claime  of  record,  because 
that  doth  worke  a  conclusion. 


Sect.  696. 

ALSO,  if  two  joyntenants  seised  of  certaine  tenements  in  fee,  the  one 
being  of  full  age,  the  other  zvithin  age,  bee  disseised,  *  <f  c.  and  the 
disseisor  die  seised,  and  his  issue  enter,  the  one  of  the  joyntenants  being 
then  within  age,  and  after  that  he  commeth  to  full  age,  the  heire  of  the 
disseisor  letteth  the  tenements  to  the  same  joyntenants  for  terme  of  their 
\.  two  lives,  this  is  a  remitter  {as  to  the  moietie)  to  him  that  was  within 
age,  because  hee  is  seised  of  the  moietie  which  belongeth  to  him  in  fee, 
for  that  his  entrie  was  congeable-  But  the  other  joyntenant  hath  in  the 
other  moity  an  estate  for  terme  of  his  life  by  force  of  the  lease,  because 
his  entry  ivas  taken  away,  ^c. 

(2  Inst.  308.)  T7  ERE  note  a  diversitie  worthy  the  observation,  that  where 
-L-i-  joyntenants  or  coparceners  have  one  and  the  same  remedie, 
if  the  one  enter,  the  other  shall  enter  also  :  but 
JS®""  where  remedies  bee  severall,  there  it  is  otherwise.  r364.~| 
10  H.  6.  10.  As  if  two  joyntenants  or  coparceners  joyne  in  a  reall  L  ^-  J 
19  H.  6.  45.  action,  where  their  entrie  is  not  lawfull,  and  the  one  is 
Ent.  Cone.  54,  Summoned  and  severed,  and  the  other  pursueth  and  recovereth 
the  moitie,  the  other  joyntenant  or  coparcener  shall  enter  and 
take  the  profits  with  her,  because  their  remedie  was  one  and  the 
same.  But  where  two  coparceners  be,  and  they  are  disseised, 
and  a  discent  is  cast,  and  they  have  issue  and  die,  if  the  issue  of 
the  one  recover  her  moitie,  the  other  shall  not  enter  with  her, 
because  their  remedies  were  severall  (A) :  and  yet  when  both 
have  recovered,  they  are  coparceners  againe.  So  here  in  this 
case  that  Littleton  putteth,  the  two  joyntenants  have  not  equall 
remedie ;  for  the  infant  hath  a  right  of  entrie,  and  the  other  a 
right  of  action;  and  therefore  the  infant  being  remitted  to  a 
moitie,  the  other  shall  not  enter  and  take  the  profits  with  her. 

If 

■}■  disclaimer — clayme,  L.  and  M.  \\  n'ad — ad,  L.  and  M.  and  Roh. 

and  Roh.  *  &c.  not  in  L.  and  M.  or  Roh. 

I  disclaimer — clayme,  L.  and  M.  \.  two  not  in  L.  and  M.  or  Roh. 
a7id  Roh. 

(A)  The  reason  for  which  their  remedies  were  several  is  explained  ante  164.  a.  In  com- 
mciitinij  upon  the  statute  of  Gloucester,  cap.  6.  loi-d  Coke  observes,  that  if  two  coparceners  be 
disseised,  the  one  hath  issue  and  die,  the  attnt  and  the  niece  shall  not  join,  for  they  have  not 
one  right,  but  several,  and  there/ore  they  must  have  several  actions,  but  when  they  have 
recovered  they  shall  hold  in  coparcenary.     2  Inat.  308. 


L.  3.  C.  13.  Sect.  697.    Of  Warrantie.         [364  b.  365.  a. 

If  A.  and  B.  joyntenants  in  fee,  be  disseised  by  the  ftither  of 
^-1.  who  dieth  seised,  his  sonne  and  heire  entreth,  he  is  remitted 
to  the  whole,  and  his  companion  .sliall  take  advantage  thereof. 
Otherwise  here  in  the  case  of  Littleton,  for  that  the  advantage  is 
given  to  the  infant,  more  in  respect  of  his  person  than  of  his 
right ;  whereof  his  companion  shall  take  no  advantage.  But  if 
the  grandfather  had  disseised  the  joyntenants,  and  the  land  had 
descended  to  the  father,  and  from  him  to  A.  and  then  A.  had 
died,  the  entrie  of  the  other  should  be  taken  away  by  the  first 
discent;  and  therefore  he  should  not  enter  with  the  heire  of  A. 

But  here  in  the  case  of  Littleton,  if  after  the  discent  the  other  Vide .35  Ass. 
joyntenant  had  died,  and  the  infant  survived,  some  say  that  he  ^' '  "  ''™' 
should  have  entred  into  the  whole,  because  hee  ic  now,  in  judge- 
ment of  law,  solely  in  by  the  first  feoffment,  and  he  claimeth 
not  under  the  discent. 


CiiAP.  13.  Of  Warrantie.  Sect.  697. 

TTis  commonly  said,  that  there  hee  three  warranties,  scilicet,  warrantie 
lineall,  ivarrantie  collaterall,  and  ivarrantie  that  commence  hy  dissei- 
sin. And  it  is  to  be  understood,  that  before  the  statute  of  Gloucester  aZ^ 
warranties  which  descended  to  (B)  them  which  are  heires  to  those  ivho 
made  the  warranties,  were  barres  to  the  same  heires  to  demand  any  lands 
or  tenements  against  the  warranties,  except  the  tvarranties  which  com- 
mence by  disseisin  ;  for  such  warrantie  was  no  barre  to  the  heire,  for  that 
the  warrantie  commenced  by  wrong,  viz.  by  disseisin. 

"TTis  commonhj  said."     Here  by  the  opinion  of   Littleton,  ViJe  Sect.  288. 
-^  communis  opinio  is  of  authoritie,  and  stands  with  the  (Yj^^^^jj^^^  375  ^ 

r365. 1   rule  of  law,  ^  commiini obscrva ntia  not  est  fl®""  rece-  (i  lup.  1.) 
|_      a.      J   dendum :  and  againe,  Mincme  mutanda  sunt  quae  cer- 
tam  hahuerunt  interprctationem. 
Here  our  author  beginneth  this  Chapter  with  an  exact  division 
of  warranties.     A  warrantie  is  a  covenant  reall  annexed  to  lands 
or  tenements,  whereby  a  man   and   his    heires    are   bound   to  Bract,  lib. 2. 
warrant  the  same;  and  cither  upon  voucher,  or  by  judgement  fol.  37.    Lib.  5. 
in  a  writ  of  icarrantise  cartae  to  yeeld  other  lands  and  tenements  ^1-380,.381. 
(which  in  old  bookes  is  called  in  exramhio)  to  the  value  of  those  Gianvill.  lib.  3. 
that  shall  bee  evicted  by  a  former  title,  or  else  may  bee  used  by  f.ip.  1,  2,  3. 

c       I     ,,      /i\  I'ib.  7.  ca.  2,  3. 

way  of  rebutter  (1).  ,,„,,»  Lib.  9.  ca.  4. 

"  Kebonter,  Britton,  ca.  105. 
fol.  249,  250,  ic.  &  fol.  88. 106.  b.  196.  197.  Flcta,  lib.  5.  cap.  15.  Lib.  G.  cap.  23. 
Mirr.  cap.  2.  g  17.     38  E.  3.  21.     45  E.  3.  18. 

(B)   Vid.  ante  Sect.  601,  and  the  note  under  (A)  there. 


(1)  The  doctrine  of  warranty  was  formerly  one  of  the  most  interesting  and 
useful  articles  of  legal  learning;  but  the  effect  and  operation  of  warranties 
having  by  repeated  acts  of  the  legi.slature,  been  reduced  to  a  very  narrow 
compass,  it  is  become  in  most  respects  a  matter  of  speculation  rather  than  of 

use. 


365.  a.]  Of  Wanantie.     L.  3.  C.  13.  Sect.  697. 

(Ant.  303.  b.  i'  Rehouter,"  is  a  French  word,  and  is  in  Latine  repellere,  to 

2  Roll.  Abr.  rcpell  or  barre ;  that  is,  in  the  understanding  of  the  common  law, 

Cro.  Jac.'  •!.)  the  action  of  the  heire  by  the  warrantie  of  his  ancestor ;  and  this 


use.  In  some  instances,  however,  warranties  have  still  a  powerful  influence  on 
our  landed  property;  and  there  is  no  part  of  our  jurisprudence  to  which  the 
ancient  writers  have  more  frequently  recourse  to  explain  and  illustrate  their 
leo'al  doctrines.  Hence  abstruse,  and  in  most  respects  obsolete,  as  the  learning 
respecting  it  unquestionably  is,  it  continues  to  deserve  the  attention  of  every 
person  who  wishes  to  obtain  accurate  notions  of  those  branches  of  our  laws, 
which  are  more  immediately  connected  with  the  doctrines  that  respect  the 
alienation  of  landed  property. 

In  the  civil  law  warr ant j  is  defined,  the  obligation  of  the  seller  to  put  a  stop 
to  the  eviction,  and  other  troubles  which  the  buyer  suffers,  in  the  property  pur- 
chased.    Eviction  is  defined  to  be  the  loss  which  the  buyer  suffers,  either  of 
the  whole  thing  that  is  sold,  of  a  part  of  it,  by  reason  of  the  ri^ht  which  a 
third  person  has  to  it.     The  other  troubles  are  those  which,  without  touching 
the  property  of  the  thing  sold,  diminish  the  right  of  the  purchaser;  as  if  any 
one  pretends  a  right  to  the  usufruct  of  the  lands  sold,  to  a  rent  issuing  out  of 
them,  to  a  service,  or  any  other  thing  of  the  like  nature.  The  buyer  being  thus 
evicted  or  troubled  in  his  possession,  has  his  recourse  to  the  seller  to  warrant 
him.     This  warranty  is  either  in  lav:,  being  that  security  which  every  seller  is 
bound  to  give  for  maintaining  the  buyer  in  the  free  possession  and  enjoyment 
of  the  thing  sold,  although  the  sale  makes  no  mention  of  it;  or  in  deed,  being  that 
kind   of  particular   or  conventionary  warranty,  which  the  seller  and   buyer 
regulate  among  themselves.     See  Domai.  1.  i.  tit.  2.  §  10.     By  the  practice  of 
tlie  Roman  law,  the  buyer  might,  immediately  after  the  eviction  or  trouble, 
give  notice  of  it  to  the  seller,  who  then,  if  he  thought  proper,  might  make 
himself  a  party  to  the  action,  and  defend  it;  but  till  the  sentence  was  pro- 
nounced, the  buyer  could  not  bring  his  action  of  warranty  against  the  seller; 
and  the  action  was  brought  before  the  judge  of  the  place  in  which  the  seller 
was  domicilated.     But  the  practice  is  different  in  the  courts  of  law  in  France. 
There  th^  buyer,  when  he  gives  notice  of  the  action  to  the  seller,  may  bring 
his  action  of  warranty  against  him  before  the  judge,  before  whom  the,  original 
action  is  brought;  and  if  he  cannot  defend  the  action,  the  judge  condems  him 
to  indemnify  The  seller,  by  the  same  sentence  by  which  he  pronounces  in  favour 
of  the  plaintiff  in  the  original  cause.      See  Pothicr    Traite  des    Contracts  de 
Ycnte,  partie  2.  c.  1.  sect.  2.  art.  5.  §  2.     The  first   warrantor  may  call  upon 
another  to  warranty;  he  in  the  same  manner  may  call  upon   a  third.     But  to 
prevent  the  delays  which  must  unavoidably  ensue  from  multiplying  warranties, 
a  fourth  warrantor  is  not  permitted  to  intervene,  except  in  particular  circum- 
stance.    The  degrees  also  must  be  observed.     Each  person  must  vouch  his  own 
immediate  warrantor,  as  it  is  not   lawful  for  him  to  vouch  any  of  the  ulterior 
warrantors.     After  the  warrantor  has  entered  into  the  warranty,  the  person 
warranted  may  either  proceed  in  his  defence  jointly  with  the  warrantor,  or  leave 
the  cause  to  him  solely.     The  sentence  binds  them  both  equally. _    If  the  par- 
son against  whom  the  action  is  brought  be  evicted  or  troubled  in  his  posses- 
sion by  the  sentence  of  the  judge,  he  has  a  claim  upon  the  warrantor  for  a  com- 
plete indemnification.  Sometimes  the  precise  sum  to  be  paid  by  way  of  indemnity 
is  fixed  and  agreed   to  by  the  parties  upon  the  making  of   the  contract ;    but 
penal  obligation  of   this  nature  are  greatly  discountenanced  by  the  laws  of 
France.     It  is  always  in  the  breast  of  the  judge  to  moderate  or  increase  them; 
but  they  cannot  be  increased  either  by  the  express  contract  of  the  parties,  or 
the   equity  of   the  judge,  to  more   than  double  of   the  property  evicted.     See 
Traite  des  Evictions  et   de  la  Garantie  Formelle,  par  Mons.   Berthelot,  2  vol. 

Oct.  Paris,  1781. 

'  The 


L.  3.  C.  VS,  Sect.  697.     Of  Warrantie.  [365.  a. 

is  called  a  rebut  or  repell.     [c]  Britton  saith,  Garranter  en  tin  W  Britton,  fol. 
sence  mjnijie  a  defender  son  teyiant  en  sa  seisin,  et  en  miter  sence 
signijie  que  si  il  ne  le  defende,  que  le  yarrant  luy  soil  tenue  a 

eschanges, 


The  warranty  treated  of  by  Littleton  in  this  Chapter,  is  evidently  of  feudal 
extraction,  being  derived  from  the  obligation  which  the  lord  was  under,  by 
that  system  of  polity,  to  defend  his  tenants  title  to  the  land  against  all  claim- 
ants.    If  the  tenant  was  evicted,  the  lord  was  bound  to  make   him^  a  recom- 
pense, by  giving  him  lands  of  equal  value  to  those  evicted  from  him.     The 
doctrine  and  practice  of  warranty,  in  the  early  ages  of  the  feudal  law,  is  thus 
set  forth  in  the  book  of  the  Fiefs,  tit.  25.     It  is  there  stated  that  a  vassal  held 
a  fief  from  the  lord,  and  being  disturbed  in  his  possession  of  it,  called  upon 
the    lord  to  defend  him.     The  lord  refused  to  appear  before  the  judge,  by 
which  the  vassal  lost  his  cause.     The  vassal  thereupon  demanded  a  recom- 
pense from  the  lord.     The  lord  said  in  answer  that  the  vassal  never  held  the 
fief,  nor  received  the  investiture  of  it  from  him.     The  vassal  replied,  that  he 
held  the  fief  from  the  lord,  and  had  been  invested  with  it  by  him ;  that  he  had 
called  upon  the  lord  to  defend  the  possession  on  the  trial,  and  that  the  lord 
did  not  then   deny  the   lands  being  held  of  him.     All  this  the  vassal  proved 
by  proper  witnesses.     Upon   this  case  it  was  held,  that  when  a  vassal  is  dis- 
turbed in  the  possession  of  his  fief,  if  he  calls  on  the  lord  to  defend  him,  and 
it  appears  on  the  trial   that  the  lord   invested  him  with  a  fief  that  did  not 
belong  to  him,  the  lord  is  bound  either  to  give  him  another  fief  of  equal  value, 
or  the  price  of  it  in  money;  and  that  he  is  bound  to  do  this  as  soon  as  it 
clearly  appears  that  the  vassal  will  be  evicted  of  the  fief;  but  that  if  the  lord 
denies  that  the  fief  is  held  of  him,  and  that  the  vassal,  or  any  of  his  ancestors, 
were  invested  with  it  by  him,  and  the  vassal  proves  those  facts,  either  by  an 
instrument  properly  authenticated,  or  by  the  peers  of  the  court,  the  lord  must 
give  him  another  fief;  or  may  be  put  to  his  oath,  that  neither  the  vassal  nor 
any  of  his  ancestors  held  the  fief  from,  or  were  invested  with  it  by  him,  or  any 
of  his  ancestors.     If  the  lord  does  this  he  is  to  be  acquitted. — Sir   Martin 
Wright  seems  to  question  whether  the  lord's  obligation  to  protect  or  defend 
the  feudatory,  made  him   anciently  liable  upon  eviction  (without  any  fraud 
or  defect  in  him)  to  compensate  the  loss  of  the  fief.     He  observes,  that  it 
can  hardly  be  imagined  that  while  feuds  were  precarious,  and  held  at  the  will 
of  the  lord,  or  indeed,  that  while  they  were  generously  given,  without  price 
or  stipulated  render,  the  lord  should  be  subject  to  such  a  loss;  especially  since 
it  is  likely  that  the  lord's  obligation  upon  eviction  rather  prevailed  upon  the 
reason  of  contracted  and  improper   feuds,  than    from  the  nature  of   a  pure 
original  feud.     He  observes,  that  none  of  the  ancient  feudists  make  any  such 
distinction  but  that  all  of  them  suppose  the  lord's  obligation  upon   eviction  to 
have  been  general ;  yet  he  asserts  they   must  be  understood  to  speak  of  the 
times  in  which    they  wrote,  when   improper   feuds    chiefly   prevailed.       Sec 
Introduc.  to  the  Law  of  Tenures,  pp.  38,  39,  40.— Upon  a  principle  similar  to 
that  upon  which  this  distinction  is  grounded,  it  seems  to  have  been  formerly 
made  a  question  by  the  writers  on  the  feudal  laws  of  the  Geman  and  Italian 
states,  whether  investiture  alone,  without  any  express  promise  or  undertaking 
on  the  part  of  the  lord,  entitled  the  tenant  to  claim  an  equivalent  from  the  lord, 
in  case  of  eviction,     llosentall,  a  German  feudist  of  great  authority,  has  stated 
this  question,  and  the  authorities  upon  which  the  two  opposite  opinions  re- 
specting it  are  founded.    He  mentions  it  to  be  his  own  opinion,  that  investiture 
alone,  without  any  promise,  entitled  the  tenant  to  an  equivalent ;  and  he  says, 
that  the  greatest  part  of  those  who  maintain  the  opposite  opinion,  admit  that 
the  lord,  though  he  has  made  no  promise,  is  bound  to  give  an  equivalent,  if 
the  fief  were  originally  granted  for  services  done;  or  otherwise  in  the  way  of 
remuneration.     Rosentall  Tractatus  et  St/nopsis  totius  Juris  feudalis,  Coll. 

Allob. 


365.  a.]  Of  Warrantie.      L.  3.  C.  13.  Sect.  697. 

[d]  Bract,  lib.  5.  eschanffcs,  et  de  faire  son  gree  a  la  villaunce.   [d]  Bracton  saith, 
fol.  380.  Warrantizarenihil almd  est, qudm  defendereet  acquietare  tenetem 

[e]  Fleta,  lib.  5.    quiwarrantumvocavitinseisindsud.   [e]  Fleta  sa,ith,  Wttrrand- 
cap.  15.  (A).        2;flrre  nihil  ahud  est  qucLm  possidentem  vocantem  defendere  et  ac- 
quietare in  sud  seisind  vel possessione  erga  jJetentem,  &c.  et  tenens 

Lib.  4.  fol.  81.      de  re  warranti  excambium  habebit  ad  valentiam. 
Noke's  case.  j^  jg  ^^  |jg  observed  that  there  be  two  kiude  of  warranties, 

jjj    '    "       '      that  is  to  say,  warrantia  expressaet  tacita,  vulgarly  said  warran- 
tie  in  deed,  because  they  be  expressed;  and  warranties  in  law,  be- 
cause the  law  doth  tacitly  imply  them.     And  this  division  of 
warranties  that  Littleton  here  speaketh  of,  he  intendeth  of  war- 
ranties 

(A)  This  reference  to  Fleta  is  very  incorrect.     See  Fleta,  lib.  6.  cap.  23.  §  2. 

AUob.  1610.  vol.  1.  469,  470. — In  a  more  recent  publication,  expressly  on 
the  subject  of  gratuitous  fiefs,  it  is  held,  that  the  lord  is  bound  to  defend  the 
fief,  and  to  give  the  tenant  an  equivalent,  if  it  is  evicted  from  him.  The 
author  states  the  objection  made  by  sir  Martin  Wright ;  and  in  answer  to  it 
observes  that  the  feudal  contract  and  connection  between  the  lord  and  tenant 
is  such,  as  distinguishes  it  from  a  voluntary  donation,  and  necessarily  includes 
this  obligation  upon  the  lord.  See  Petri  Schultzii  Dissertatio  de  Feudo  Gratise 
in  Jcnichcn  Thesaurus  Juris  feudalis,  Francofurti  ad  Maenum,  torn.  2.  55G.  567. 
568.  It  should  seem  that  with  us  anciently,  every  kind  of  homage,  when  received, 
but  not  before,  bound  the  lord  to  acquittal  and  warranty ;  that  is,  to  keep  the 
tenant  free  from  distress,  entry,  or  other  molestation,  for  services  due  to  the 
lords  paramount,  and  to  defend  his  title  to  the  lands  against  all  others;  but 
that  in  subsequent  times,  the  implied  acquittal  and  warranty  were  peculiar  to 
that  species  of  homage  which  is  known  by  the  appellation  of  homage  ancestrel. 
See  ant.  67.  b.  note  1.  105.  a.  note  1.  In  another  material  quality,  the  warranty 
annexed  to  homage  ancestrel  differed  from  express  warranty.  In  the  case  of 
express  warranty  the  heir  was  chargeable  only  for  those  lands  which  he  had 
by  descent  from  the  ancestor  who  created  the  warranty.  But  in  the  case  of 
homage  ancestrel  the  tenant  was  not  driven  to  recover  in  value  only  those 
lands  which  the  lord  had  from  that  ancestor  who  created  the  warranty ;  that 
would  be  impossible,  as  it  was  essential  to  homage  ancestrel,  that  the  seigniory 
should  have  been  created  before  time  of  memory.  It  being  therefore  impossi- 
ble to  ascertain  which  lands  descended  from  the  ancestor  who  made  the  grant, 
the  law  charged  all  the  lands.  See  ant.  102.  b.  But  defence  and  recompense 
were  not  the  only  benefits  which  the  tenant  derived  from  the  lord's  warranty; 
it  rebutted  or  repelled  the  lord  from  claiming  the  land  itself,  or  any  profit  or 
right  from  it,  but  those  which  under  the  feudal  contract  were  due  to  him  as 
lord,  according  to  the  fundamental  maxim  of  the  doctrine  of  fiefs,  Homagium 
repellit  perquisitum.  Such  appear  to  be  the  outlines  of  the  system  of  warranty 
in  the  early  ages  of  the  feudal  law.  The  practice  of  subinfeudation  necessarily 
occasioned  a  considerable  extension  of  it.  It  was  totally  inhibited  by  the 
statute  made  in  the  18th  year  of  Edward  I.  commonly  called  the  statute  quia 
emptores  terrarum.  That  statute  had  a  particular  influence  both  on  the  practice 
and  the  doctrine  of  warranty.  The  free  alienation  of  property  which  is  au- 
thorized necessarily  put  an  end  to  the  homage  ancestrel,  and  consequently  to 
the  implied  warranty  annexed  to  it.  To  remedy  this,  if  the  lord  aliened,  the 
tenants,  before  they  'attorned  to  the  new  lord,  required  a  new  warranty  from 
him  ;  if  the  tenant  aliened,  it  was  with  an  express  clause  of  warranty.  This 
gave  the  new  tenant  the  benefit  of  the  lord's  obligation  to  warrant  the  old 
tenant:  as  the  new  tenant  might  vouch  the  old  tenant,  and  he  in  his  turn  might 
deraign  the  lord.  This  subject  will  be  pursued,  and  an  attempt  will  be  made 
to  investigate  and  explain  the  grounds  of  the  distinction  between  lineal  and 
collateral  warranty,  in  note  2.  373.  b. — [Note  315.] 


L.  3.  C.  18.  Sect.  697.    Of  Warrantie.     [365.  a.  365.  b. 

ranties  in  deed.     And  of  warranties  in  law,  more  shall  be  said  Vid.  Sect.  73.3. 

hereafter  in  this  Chapter.    As  for  promises  or  contracts  annexed  j.^^g^^^^j^'^^^g 

to  chattells  reall  or  personal!,  they  are  not  intended  by  our  au-  q^^[  j^  ^ 

thor  in  his  said  division,  but  only  warranties  concerning  free-  Ant.  loi.  b. 

holds  and  inheritances.  l*Roif  Rep' 

.316.     Cro.  jac. 
''Be/ore  the  statute  of  Gloucester."    This  statute  was  made  at  ,3S6.  3  Bulst.  95. 
a  parliament  holden  at  GJocester  in  the  sixth  yeare  of  the  reigne  Poph.  m 
of  king  E.  1,  and  therefore  it  is  called  the  statute  of  Glocester.   q^^^-  ^^^ ' 

3  Mod.  261. 
"  Were  harres  to  the  same  heires  to  demand  any  lands,  &c."  S.  C.  Shower, 
For  the  statute,  as  hath  beene  said,  being  made  in  6  ^7.  1,  was  yj^  sl!|!t;724,  . 
before  the  statute  of  donis  conditionalihus,  which  was  enacted  725  &  727,  Ac' 
13  Edward  \,  when  all  states  of  inheritance  were  fee  simple.  (2  Inst.  293.) 
But  after  the  statute  of  13  Edward  1,  the  heire  in  tayle  is  not  f^l'^goTb!^*  ^' 
barred  by  the  warrantie  of  his  ancestor,  unlesse  there  be  assets,  jxliiZ  lib.'s. 
as  shall  be  said  hereafter  more  largely  in  this  Chapter.  cap.  34.    7  E.  3. 

Garr.  47. 

By  the  statute  of  Glocester  foure  things  are  enacted.  ^     (8  Rep.  52,  53.) 

First,  that  if  a  tenant  by  the  curtesie  alien  with  warrantie 
and  dieth,  that  this  shall  bee  no  barre  to  the  heire  in  a  writ  of 
mordanccster,  without  assets  in  fee  simple  ;  and  if  lands  or  tene- 
ments descend  to  the  heire  from  the  father,  he  shall  be  barred, 

having  regard  to  the  value  thereof. 
["36 5.1  0^  Secondly,  that  if  the  heire,  for  want  of  assets 
j_  b.  J  at  that  time  descended,  doth  recover  the  lands  of  his 
mother  by  force  of  this  act,  and  afterwards  assets 
descend  to  the  heire  from  the  father,  then  the  tenant  shall  reco- 
ver against  the  heire  the  inheritance  of  the  mother  by  a  writ  of 
false  judgement,  which  shall  issue  out  of  the  record,  to  resum- 
mon him  that  ought  to  warrant,  as  it  hath  been  done  in  other 
cases,  where  the  heire  being  vouched  commeth  into  the  court, 
and  pleadeth  that  he  hath  nothing  by  discent. 

Thirdly,  that  the  issue  of  the  sonne  shall  recover  by  a  writ  of 
cosinage,  aiel,  and  hesaiel. 

And  lastly,  that  the  heire  of  the  wife,  after  the  death  of  the 
father  and  mother,  shall  not  bee  barred  of  his  action  to  demand 
the  heritage  of  the  mother  by  writ  of  entrie,  which  his  father 
aliened  in  the  time  of  his  mother,  whereof  no  fine  was  levied  in 
the  king's  court. 

Concerning  the  first,  there  be  two  points  in  law  to  be  observed.  (Ant.  54.  b.; 

First,  albeit  the  statute  in  this  article  name  a  writ  of  mordan- 
ccster, and  after  writs  of  cosiiiage,  aiel,  and  hesaiel  [(i];  yet  a  j-g-j  ^  p.  3.  tit. 
writ  of  right,  &  formedon,  a  writ  of  entry  ad  commrturm  Icr/cm,  Garr.  83. 
and  all  other  like  actions,  are  within  the  purview  of  this  statute;  ^g^p^:,*^"'"''''^" 
for  those  actions  are  put  but  for  examples.  Pi  c^'j^  jjo 

7  E.  3.  53.     Temps  E.  1.     Garr.  87. 

Secondly,  where  it  is  said  in  the  said  act  (if  the  tenant  by  the  27  E.  3.  8,  9, 
courtesie  alien,)  yet  his  release  with  warrantie  to  a  disseisor,  &c.  ^4.  E.  ^J^^^^  ^^ 
is  within  the  purview  of  the  statute,  for  that  it  is  in  equall  mis-  Mar.  I48*a.° 
chiefe ;  and  if  that  evasion  might  take  place,  the  statute  should 
have  beene  made  in  vaine. 

If  tenant  by  the  courtesie  be  of  a  seigniorie,  and  the  tenancic 
escheate  unto  him,  and  after  he  alieneth  with  warrantie,  this  shall 
not  binde  the  issue,  unlesse  assets  descend ;  for  it  is  in  equall  mis-  22  Ass.  9  &  37. 
chiefe.  But  notwithstanding  this  statute,  if  feme  tenant  in  dower  Temps  E.  1. 

had  <^'ir.  86. 


365.  b.J  Of  Warrantie.      L.  3,  C.  13.  Sect.  697. 

had  aliened  in  fee  with  warranty  and  died,  the  warranty  had 
[o]  11  H.  7.  bound  the  heire  untill  the  statute  [o]  of  11  II.  7,  since  our  au- 
cap.  20.  thor  wrote  :  by  which  statute  the  heire  may  enter,  notwithstand- 

(Post.  380.  a.       •       g^gjj  warrantie. 

381   u.) 

But  note,  there  is  a  diversitie  betweene  a  warranty  on  the 
part  of  the  mother,  and  an  estoppell;  for  an  estoppell  of  the 
part  of  the  mother  shall  not  binde  the  heire,  when  hee  claimeth 
18  E.  3.  9.  from  the  father :  as  if  lands  bee  given  to  the  husband  and  wife, 

and  to  the  heires  of  the  husband,  the  husband  make  a  gift  in 
(Hob.  31.  taile,  and  dieth,  the  wife  recovereth  in  a  cui  in  vitd  against  the 

8  Eep.  54.  a.)  donee,  supposing  that  she  had  a  fee  simple,  and  make  a  feoffemcnt 
and  dyeth,  the  donee  dyeth  without  issue,  the  issue  of  the  hus- 
band and  wife  bring  a  formedon  in  the  reverter  against  the 
feoffee ;  and  notwithstanding  that  he  was  heire  to  the  estoppell, 
and  the  mother  was  estopped,  yet  for  that  he  claimed  the  land 
as  heire  to  his  father,  hee  Avas  not  estopped.  Note,  that  warran- 
ties are  favoured  in  law,  being  part  of  a  man's  assurance;  but 
estoppels  are  odious. 
21  R.  2.  If  a  feme  heire  of  a  disseisor  infeoffeth  me  with  a  warrantie, 

f^'ifir'Ab  ^^^  marrieth  with  the  disseisee,  if  after  the  disseisee  bring  a 

776,  '  '  praecipe  against  me,  I  shall  rebut  him,  in  respect  of  the  warran- 
8  Rep.  53.  b.  tie  of  his  wife,  and  yet  he  demandeth  the  land  in  another  right. 
Ant.  326.  a.  ^^^  g^  jf  jj^g  husband  and  wife  demand  the  right  of  the  wife,  a 
44  )3*  '      warrantie  of  the  collaterall  ancestor  of  the  husband  shall  barre. 

I  Leo.  261.  If  a  woman  had  beene  tenant  for  life,  the  remainder  or  rever- 

sion to  her  next  heire,  and  the  woman  had  aliened  in  fee  and 
died,  this  warrantie  had  barred  her  heire  in  remainder  or  rever- 

II  H.  7.  cap.  20.  sion;  but  this  is  partly  holpen  by  the  said  act  of  11  II.  7,  viz. 
Fid.  Sect.  595.  •^yllere  the  woman  hath  any  estate  for  life  of  the  inheritance  or 
of  11  H.  7.'c."20.  purchase  of  her  husband,  or  given  to  her  by  any  of  the  ances- 
well  expounded,  tors  of  the  husband,  or  by  any  other  person  seised  to  the  use  of 
Lib.  1.  ful.  176.  jjgf  husband,  or  of  any  of  his  ancestors,  there  her  alienation, 
MiiTmave's^"^    release,  or  confirmation  with  warrantie,  shall  not  binde  the  heire. 

case.  3  <fe  4  Ph.  &  Mar.  Dier,  146.  Lib.  3.  fol.  59,  60,  61,  62.  Lincolne  Coll.  case. 
PI.  Com.  fol.  56.  20  Eliz.  Dier,  362.  Doct.  &  Student,  55.  8  Eliz.  Dier,  248.  19 
Eliz.  Dier,  354.  21  Eliz.  ibid.  362.  Lib.  3.  fol.  50,  61,  sir  George  Browne's  case. 
Lib.  5.  fol.  79.     Fitzh.  case.     27  II.  8.  23. 

To  the  authorities  quoted  in  the  margent,  which  may  serve  as 
commentaries  upon  the  said  statute,  I  will  only  adde  two  cases. 
[/]  Mich.  13  The  one  was  [/]  A  man  seised  of  lands  in  fee  levied  a  fine  to 
Jac.  inter  Har-  the  use  of  himselfe  for  life,  and  after  to  the  use  of  his  wife,  and 
ley  &  West  in  £  ^^  heires  males  of  her  body  by  him  begotten  for  her  ioin- 
ejectione  firmse  ,  ,      i  •  i  i     ,■       i  ^  i  ■        -o    ^      •    ^       n 

in  Communi        ture,  and  had  issue  male,  and  atter  he  and  his  wiie  levied  a  fine. 

Banco.  Lincoln,  and  suifered  a  common  recovery,  the  husband  and  wife  died,  and 
the  issue  male  entred  by  force  of  the  said  statute  of  11  //.  7. 
And  it  was  holden  by  the  justices  of  assize  (the  case  comming 
downe  to  be  tried  by  nisi  prius),  that  the  entry  of  the  issue 
male  was  lawfuU  (A) :  and  yet  this  case  is  out  of  the  letter  of  the 
statute ;  for  she  neither  levied  the  fine,  &c.  being  sole,  or  with 
any  other  after-taken  husband,  but  is  by  herselfe  with  her  hus- 
band that  made  the  joynture.  Scd  qui  hceret  in  litevdliseret  in 
cortice;  and  this  case  being  in  the  same  mischiefe,  is  therefore 
within  the  remedy  of  the  statute,  by  the  intendment  of  the 
makers  of  the  same,  to  avoid  the  disherison  of  heires  who  were 

provided 

(A)   This  determination  was  over-ruled  hy  the  case  of  Kirkham  v.  Thompson,  Cro,  Jac.  474. 
See  also  Whately  v.  Kemp,  cited  2  Vts.  sen.  358. 


L.  3.  C.  13.  Sect.  697.     Of  Warrantie.    [365.  b.  366.  a. 

provided  for  by  the  said  joynture,  and  especially  by  the  husband 
himselfe   that  made  the  joynture,  which  (as  it  was  said)  is  a 

stronger  case  than  the  example  set  downe  in  the  sta- 
r366.1  tute.     The  other  was,  [y]  A  man  seised  of  B@°"  lands  [y]  Pascb. 
L     a.     J   in  the  right  of  his  wife,  and  they  two  levie  a  fine,  and  17  Eliz. 

the  conusee  grant  and  rendereth  the  land  to  the  hus-  ^^^  "J^g^  ^' 
band  and  wife  in  speciall  tayle,  the  remainder  to  the  right  heires  of  115.' a.    Post. 
the  wife,  they  have  issue,  the  husband  dyeth,  the  wife  taketh  369.  a.  381.  a. 
another  husband,  and  they  two  levie  a  fine  in  fee,  and  the  issue  ^r.,     it's 
entcreth,  this  is  directly  withm  the  letter  of  the  statute,  and  yet  Dyer,  64.  b. 
it  is  out  of  the  meaning;  because  the  state  of  the  land  moved  Jo.  31.  Ilob.  332. 
from  the  wife,  so  as  it  was  the  purchase  of  the  husband  in  letter,  ^^j^'  '^475^' 
and  not  in  meaning.  But  where  the  woman  is  tenant  for  life,  by  Ben.  40. 
the  gift  or  conveyance  of  any  other,  her  alienation  with  war-  2  lust.  681. 
rantie  shall  bind  the  heire  at  this  day.     So  if  a  man  bee  tenant  n^/.'^^p.T'  ^|i* 
for  life  (otherwise  than  as  tenant  by  the  courtesie)  and  alien  in  32  '2I6.    Cro.* 
fee  with  warrantie,  and  dieth,  this  shall  at  this  day  bind  the  heire  Car.  244.  pi.  464. 
that  hath  the  reversion  or  remainder  by  the  common  law  not  ^°™  Banco, 
holpen  bj-  any  statute.     But  all  this  is  to  be  understood,  unlesse  ^bich  I  myselfe 
the  heire  that  hath  the  reversion  or  remainder  doth  avoid  the  heard  and 
estate  so  aliened  in  the  life  of  the  ancestour;  for  then  the  estate  "^^'^Tf'^:. 
being  avoided,  the  warranty  being  annexed  unto  the  estate,  is  141  Voor  ^93.) 
avoided  also ;  whereof  more  shall  be  said  in  this  Chapter  in  his  Sect.  725.  ' 
proper  place.     And  therefore  it  is  necessary  for  the  heire  in  such  (1  ^''P-  ^^■ 
cases  to  make  an  entry  as  soone  as  he  hath  notice  or  probable  ^gg  'y^^ 
suspicion  of  such  alienation.  10  Rep.  95. 

As  to  the  second  clause  of  the  statute  of  Gloucester,  there  are 
two  points  of  law  to  be  observed. 

First,  that  by  the  expresse  purview  of  the  statute,  if  assets  doe  pi.  com.  Ful- 
after  discend  from  the  father,  then  the  tenant  shall  have  recovery  mcrstono's  case, 
or  restitution  of  the  lands  of  the  mother.     But  in  d^  formedon,  if  j^^-  ^• 
at  the  time  of  the  warrantie  pleaded  no  assets  be  discended,  gym's"  case. 
whereby  the  demandant  recovereth,  if  after  assets  discend,  there 
the  tenant  shall  have  a  scire  facias  for  the  assets,  and  not  for  the 
land  entailed.     And  the  reason  hereof  is,  that  if  in  this  case  the 
tenant  should  be  restored  to  the  land  intailed,  then  if  the  issue  iu 
taile  aliened  the  assets,  his  issue  should  recover  in  a  formeclon  ; 
and  therefore  the  sages  of  the  law,  to  prevent  future  occasions  of 
suits,  resolved  the  said  diversitie  in  the  cases  abovesaid,  upon 
consideration  and  construction  of  the  statute  of  Gloucester,  and 
of  the  statute  de  donis  conditionalibus. 

Secondly,  it  is  to  bee  observed,  that  after  assets  discended,  the 

recoverie  shall  bee  by  writ  of  judgement,  which  shall  issue  out  of 

the  rolle  of  the  justices,  &c.     And  here  two  things  are  to  be 

declared  and  explained.     First,  by  what  writ,  &c.   and  that  is  Lib.  8.  fol.  53. 

cleere,  viz.  hy  scire  facias.     But  the  second  is  more  difficult;  54.  Sym's  caf-e. 

and  that  is,  upon  what  manner  of  iudgement  the  scii-e  facias  is  to  cu*-*^'JM"  llV^ 
1  111-  1  •  I.--         1  1  11         bhipley  8  case, 

be  grounded  :  tor  explanation  whereor  it  is  to  be  understood,  that  (Doct.  Pla.  180.) 

if  the  tenant  will  have  benefit  of  the  statute  he  must  plead  the  (2  Cro.  15  Ant.) 

warrantie,  and   acknowledge  the   title   of  the  demandant,  and  ^^-  ^'  ^^^'  **^ 

pray  that  the  advantage  of  the  statute  may  bee  saved  unto  him, 

and  then  if  after  assets  discend,  the  tenant  upon  this  record  shall 

have  a  scire  facias :  and  if  assets  discend  but  for  part,  he  shall 

have  a  scire  facias  for  so  much.     But  if  the  tenant  plead  the 

warrantie,  and  plead  further  that  assets  discended,  &c.  and  the 

demandant 

Vol.  II.— 43 


:^C)6.  a.  366.  b.]    Of  Warrantie.    L.  3.  C.  13.  Sect.  697. 

demandant  taketh  issue  that  assets  discended  not,  &c.  which 
issue  is  found  for  the  demandant,  whereupon  he  recovereth,  the 
tenant,  albeit  assets  doe  after  discend,  shall  never  have  a  scire 
facias  upon  the  said  judgement;  for  that  by  his  false  plea  he 
hath  lost  the  benefit  of  the  said  statute. 

Touching  the  third,  sufficient  hath  been  spoken  before.  For 
the  last,  it  is  to  be  observed,  that  if  the  husband  be  seised  of 
lands  in  the  right  of  his  wife,  and  raaketh  a  feoffment  in  fee  with 
warrautie,  the  wife  dieth,  and  the  husband  dieth,  this  warrantie 
shall  not  binde  the  heire  of  the  wife  without  assets,  albeit  the 
husband  be  not  tenant  by  the  curtesie.  But  of  this  you  shall 
reade  more  hereafter. 

In  the  meane  time  know  this,  that  the  learning  of  warranties 
is  one  of  the  most  curious  and  cunning  learnings  of  the  law,  and 
of  great  use  and  consequence  (1). 


8  E.  2.  tit. 

Gnr.  81. 
18  E.  3.  51. 


Vide  Sect.  726. 


(2  Roll.  Abr.  774. 
Hob.  14.  28. 
2  Saund.  183.) 


2  n.  4.  13. 
?,0  H.  8.  Di.  41. 
Temps.  E.  1. 
Admesurement, 
16.     32  E.  1. 
Voucher,  294. 
30  E.  1. 
Exchauge,  16. 
9  E.  4. 
15  E.  4.  9. 
29  Ass.  13. 
(F.  N.  B.  134. 
Ante,  50.  b. 
101.  b.  308. 
nota.    Post.  389 

Vide  Sect.  741. 
45  E.  3. 
Voucher,  72. 

9  E.  3.  78. 
18  E.  3.  56. 
.■;o  E.  3.  30. 
21  H.  7.  9. 
3  H.  7.  4. 
7  H.  4,  17. 

10  E.  4.  9.  b. 
21  E.  4.  26. 
14  H.  8,  30  H.  8. 
Dier,  42.     (2  Roll.  Abr.  744.) 


"  To  demand  any  lands  or  tenements.^'  A  warrantie  may  not 
only  be  annexed  to  freeholds,  or  inheritances  corporeall,  which 
passe  by  livery,  as  houses  and  lands,  but  also  to  freeholds  or 
inheritances  incorporeall,  which  lye  in  grant,  as  advowsons ;  and 
to  rents,  commons,  estovers,  and  the  like,  which  issue  out  of 
lands  or  tenements.  And  not  onely  to  inheritance  in  esse,  but 
also  to  rents,  commons,  estovers,  &c.  newly  created.  As  a  man 
(some  say)  may  grant  a  rent,  &c.  out  of  land  for  life,  in  tayle,  or 
in  fee  with  warrantie ;  for  although  there  can  be  no  title  pre- 
cedent to  the  rent,  yet  there  may  be  a  title  precedent  to  the  land, 
out  of  which  it  issueth  before  the  grant  of  the  rent,  which  rent 
may  bee  avoided  by  the  recovery  of  the  land;  in  which  case 
the  grantee  may  help  himselfe  by  a  icarrantia  cartse,  upon  the 
especiall  matter.  And  so  a  warrantie  in  law  may  extend  to  a 
rent,  &c.  newly  created ;  and  therefore  if  a  rent  newly  created 
be  granted  in  exchange  for  an  acre  of  land,  this  exchange  is 
good,  and  every  exchange  implyeth  a  warrantie  in  law.  And  so 
a  rent  newly  created  may  be  granted  for  oweltie  of  partition. 


a.) 


jg®"  A  man  seised  of  a  rent  secke  issuing  out  of  the  p 


166. 

b. 


mannor  of  Dale,  taketh  a  wife,  the  husband  releaseth 
to  the  terre-tenant,  and  warranteth  tenemcnta  prse- 
dicta,  and  dieth,  the  wife  bringeth  a  writ  of  dower  of  the  rent, 
the  terre-tenant  shall  vouche,  for  that  albeit  the  release  enured 
by  way  of  extinguishment,  yet  the  warrantie  extended  to  it ;  and 
by  warranting  of  the  land,  all  rents,  &c.  issuing  out  of  the  laud, 
that  are  suspended  or  discharged  at  the  time  of  the  warrantie 
created,  are  warranted  also. 


Sect. 


(1)  Upon  the  alterations,  made  by  the  statute  law  in  the  doctrine  of  war- 


ranty, see  notes  1  and  2.  373.  b. 


L.  3.  C.  13.  Sect.  698.        Of  Warrantie.  [366.  b. 


Sect.  698. 

I 

117'ARRANTIS  that  commences  by  disseisin  is  in  this  manner:  as 
where  there  is  a  father  and  a  son,  and  the  Sonne  purchaseth,  ^c 
and  letteth  the  land  to  his  father  for  terme  of  yeares,  and  the  father 
hy  his  deed  thereof  infeoffeth  another  in  fee,  and  hindes  him  and  his  heires 
to  warrantie,  and  the  father  dies,  whereby  the  warrantie  descendeth  to 
the  son,  this  warrantie  shall  not  barre  the  sonne  ;  for  notwithstanding 
this  warrantie  the  sonne  may  well  enter  into  the  land,  or  have  an  assise' 
against  the  alienee  if  he  will,  because  the  warrantie  commenced  by  disseisin  : 
for  when  the  father  which  had  but  an  estate  for  terme  of  year  es,  made  a 
feoffment  in  fee,  this  was  a  disseisin  to  the  sonne  of  the  freehold  which 
then  was  in  the  sonne.  In  the  same  manner  it  is,  if  the  sonne  letteth 
to  the  father  the  land  to  hold  at  will,  and  after  the  father  make  a  feoff- 
ment with  warrantie,  ^c.  And  as  it  is  said  of  the  father,  so  it  may  be 
said  of  every  other  ancestor,  ^c.  In  the  same  manner  is  it,  if  tenant  by 
elegit,  tenant  by  statute  merchant,  or  tenant  by  statute  staple,  make  a 
ferment  in  fee  with  warranty,  f  this  shal  7iot  bar  the  heire  which  ougJct 
to  have  the  land,  because  such  warranties  commence  by  disseisin. 

T^ARRANTIE,  that  commences  hy  disseisin,  &c."     (1)  It  (Doct.  &  Stud. 

is  called  a  warranty  that  commenceth  by  disseisin,  because  155.  a.  b.) 
regularly  the  conveyance  whereunto  the  warranty  is  annexed 
doth  worke  a  disseisin. 

In  this  Section  Littleton  putteth  five  examples  of  a  warrantie 
commencing  by  disseisin,  viz.  of  a  feoflfement  made  with  warranty 
by  tenant  for  yeares,  by  tenant  at  will,  by  tenant  by  elegit,  by  7  e.  3.  41. 
tenant  by  statute  merchant,  and  by  tenant  by  statute  staple :  all  43  E.  3. 17. 
these  and  the  other  examples  that  Littleton  putteth  of  this  kinde  yj^j^'lg/t^u 
of  warranties  in  the  succeeding  Sections,  have  foure  qualities.       ^2  Inst.  154. 

1  KoU.  Abr.  663.    3  Rep.  37.) 

First,  that  the  disseisin  is  done  immediately  to  the  heire  that  ^^.^  ^  ^^^  ^^  ^ 
is  to  be  bound;  and  yet  if  the  father  bee  tenant  for  life,  the  Fits'herberVs  * 

case.     (Cro.  Car.  483.    2  Roll.  Abr.  741.) 
remainder 

f  d'c.  added  in  L.  and  M.  and  Rob. 


([)  As  to  warranties  commencing  hy  disseisin: — Lord  chief  baron  Gilbert 
divides  wrrranties  into  two  sorts :  first,  those  commencing  by  disseisin  or 
wrong;  and  secondly,  binding  warranties.  The  first  are  where  the  ancestor 
that  makes  the  warranty  is  partner  to  the  wrong;  and  such  warranties  are  not 
obliging,  because  it  cannot  be  presumed  that  one  who  is  so  unjust  as  to  do 
wrong,  will  be  so  just  as  to  leave  a  recompense  to  his  heir ;  wherefore  such 
contracts  are  wholly  rejected  as  collusive,  and  founded  on  no  consideration. 
In  the  Ancien  Coutumier  de  Normandie,  ch.  96.  it  is  said,  that  in  a  writ  of 
nouvelle  disseisine  there  is  no  vouching  to  warranty;  because  it  it  not  to  be 
suffered  that  any  one  should  retain  the  possession  of  another,  either  by  him- 
self, or  by  the  means  of  another,  or  that  he  should  disturb  it  by  his  foolish 
hardihood;  and  whoever  does  so  ought  to  restore  it. — [Note  316.] 


366.  b.  367.  a.J      Of  Warrantie.     L.  3.  C.  13.  Sect.  698. 

remainder  to  the  sonne  in  fee,  the  father  by  covine  and  consent 
maketh  a  lease  for  yeares,  to  the  end  that  the  lessee  shall  make 
a  feoffement  in  fee,  to  whom  the  father  shal  release  with  warran- 
tie, and  all  is  executed  accordingly,  the  father  dyeth,  this 
warrantie  shall  not  binde,  albeit  the  disseisin  was  not  done  imme- 
diately to  the  Sonne ;  for  the  feoffement  of  the  lessee  is  a  disseisin 
31  E.  3.  tit.  to  the  father,  who  is  part iceps  criminis.     So  it  is  if  one  brother 

Garranti^e,  23.      ^^-^^  ^  gjf^  -^^  ^^^^^  ^q  another,  and  the  uncle  disseise  the  donee, 
(      ep.     .  a.;      ^^^  enfeoffeth  another  with  warrantie,  the  uncle  dieth,  and  the 
(2  Roll.  Abr.        warrantie  descendeth  upon  the  donor,  and  then  the 
772,  77*3.)  donee  dyeth  without  fi®""  issue,  albeit  the  disseisin  was  r367. 1 

Ant.  32.  a.  56,  a.  ^^^^  ^^  ^j^g  donee  and  not  to  the  donor,  yet  the  war-  I_     a.     J 
F.  N.  B.  149.  c.    rantie  shall  not  binde  him.  The  father,  the  sonne,  and  a 

third  person  are  joyntenants  in  fee,  the  father  maketh  a  feoffment 
in  fee  of  the  whole  with  warrantie,  and  dieth,  the  sonne  dieth, 
the  third  person  shall  not  only  avoyd  the  feoffement  for  his  owne 
part,  but  also  for  the  part  of  the  sonne ;  and  he  shall  take  ad- 
vantage that  the  warrantie  commenced  by  disseisin,  though  the 
disseisin  was  done  to  another. 
(Cro.  Car.  483.)        The  second  qualitie  appearing  in  Littleton^ s  examples  is,  that 
the  warrantie  and  disseisin  are  simul  et  semel,  both  at  one  and 
[y]  19  H.  8. 12.    the  same  time,  [i/l  And  yet  if  a  man  commit  a  disseisin  of  intent 
Lib.  5.  fol.  79.  b.  to  make  a  feoffment  in  fee  with  warrantie,  albeit  he  make  the 
Fitxh.  case.         feoffment  many  years  after  the  disseisin,  notwithstanding  be- 
2^Rep.  78. '  *'      cause  the  warrantie  was  done  to  that  intent  and  purpose,  the 
Post.  369.  a.        law  shall  adjudge  upon  the  whole  matter,  and  by  the  intent 

^^^-  *•  „,  couple  the  disseisin  and  the  warrantie  together. 

9  Rep.  81.  a.  ^ 

5^Rep.^78.^'  The  third  quality  is,  that  the  warrantie  that  commenceth  by 

disseisin  by  all  these  examples  (if  it  should  binde)  should  binde 
as  a  collaterall  warrantie,  and  therefore  commencing  by  disseisin 
shall  not  binde  at  all. 

(1  Leon.  304.  "  Shall  not  bar  the  heire,  &c."     For  by  the  authoritie  of  our 

305.  Cro.  Car.  author  himself,  a  lessee  for  yeares  may  make  a  feoffment,  and  by 

Vide  Sect.  611.  ^is  feoffment  a  fee  simple  shall  passe;  so  as  albeit  as  to  the  lessor 

699.  Bract,  fol.  it  worketh  by  disseisin,  yet  betweene  the  parties  the  warrantie 

216.223,224.  annexed  to  such  estate  standeth  good;  upon  which  a  feoffee 

S?L'2!^Brittoni  "^^.y  vouch  the  feoffor  or  his  heires,  as  by  force  of  a  lineall 

cap.  Disseisin.  '  warrantie.     And  therefore  if  a  lessee  for  years,  or  tenant  by 

50  E.  3. 12.  b.  elegit,  &c.  or  a  disseisor  incontinent  make  a  feoffment  in  fee  with 

7  E  3  li  warrantie,  if  the  feoffee  be  impleaded,  hee  shall  vouch  the  feoffor, 

14  E.  3.  Feoff-  and  after  him  his  heire  also;  because  this  is  a  covenant  reall, 

ments  et  faits,  which  binde  him  and  his  heires  to  recompence  in  value,  if  they 

Issue^  3^  ^  ^^^^  assets  by  discent  to  recompence ;  for  there  is  a  feoffment 

4  E.  2.  Briefe  de  facto,  and  a  feoffment  de  jure :  [*J  and  a  feoffment  de  facto 

790. 19.  E.  2.  made  by  them  that  have  such  interest  or  possession  as  is  afore- 

43  E*3^7  ^^^^'  ^^  S00<^  betweene  the  parties,  and  against  all  men  but  only 

17  e!  Z.  41.  against  him  that  hath  right.     And  tharefore  if  the  lord  be  gar- 

43  E.  3.  Diss.  5.  deine  of  the  land,  or  if  the  tenant  maketh  a  lease  to  the  lord  for 

12^E*4^12  yeares,  or  if  the  lord  be  tenant  by  statute  merchant  or  staple, 

10  e!  4!  18!  or  by  elegit  of  the  tenancie,  and  make  a  feoffment  in  fee,  hee 

P.  N.  B.  201.  hereby  doth  extinguish  his  seigniorie,  although  having  regard  to 

Lib.  3.  fol.  78.  in  ^^^  j^gggj.  j^  jg  ^  disseisin. 

Fermor  s  case. 

[*]  Temps  E.  1.  Counterplea  de  Voucher,  126.  50  E.  3.  ibidem,  124. 
Vide  W.  1.  cap,  48.  in  the  second  part  of  the  Institutes.  (10  Kep.  9J. 
2  Roll.  Abr.  740.) 

The 


L.  3.  C.  13.  Sect.  699,  700.  Of  AYarrantie.  [367.  a.  367.  b 

The  fourth  qualitie  is  a  disseisin ;  but  that  is  put  for  an 
example ;  and  the  rather,  for  that  is  most  usual  and  frequent : 
but  a  warrantie  that  commenceth  by  abatement  or  intrusion 
(that  is,  when  the  abatement  or  intrusion  is  made  of  intent  to 
made  a  feoffment  in  fee  with  warrantie,)  shall  not  binde  the 
right  heire,  no  more  than  a  warranty  that  commenceth  by 
disseisin,  because  all  doe  commence  by  wrong.  And  so  it  is 
if  the  tenant  dieth  without  heire,  and  an  ancestor  of  the  lord 
enter  before  the  entrie  of  the  lord,  and  make  a  feoffment  in 
fee  with  warrantie,  and  dieth,  this  warrantie  shall  not  binde  the 
lord,  because  it  commenceth  by  wrong,  being  in  nature  of  an 
abatement.     Et  sic  de  similibus  (1). 


Sect.  699. 

ALSO.)  if  a  gardeine  in  chivalrie,  or  gardeine  in  socage^ 

t367."|  make  a  feoffment  in  fee,  or  in  fee  taile,  or  for  life,  with 

b.     J  warrantie,  ^c.  such  warranties  are  not  harres  to  the  heyres  to 
whom  the  lands  shall  lee  descended,  because  they  commence  by 
disseisin. 

HERE  Littleton  addeth  the  ease   of  gardeine  in  chivalrie,  16  E.  3.  Gar.  20. 
and  gardeine   in  socage,  and  gardeine  because  nurture  is  ^3  ^^'s/y, 
also  in  the  same  case.  and  the  books 

abovesaid.    Vide  Sect.  698.     (3  Rep.  37.) 


Sect.  700. 

ALSO,  if  father  and  sonne  purchase  certaine  lands  or  tenements,  to 
have  and  to  hold  to  them  joyntly,  ^c.  and  after  the  father  alien 
the  whole  to  another  (et  puis  le  pier  alien  *  I'entier  a  un  auter),  and 
binde  him  and  his  heires  to  warrantie,  ^c.  and  after  the  father  dieth,  this 
warrantie  shall  not  barre  the  sonne  of  the  moitie  that  belongs  to  him  of 
the  said  lands  or  tenements,  because  as  to  that  moitie  which  belongs  to 
the  sonne,  the  warrantie  commences  by  disseisin,  ^c. 

u  rpQ 


*  rentier — I'entierte,  L.  and  M.  and  Roh. 


(1)  The  editor  in  note  1,  to  page  330.  b.  has  (he  fears  too  prolixly) 
attempted  to  explain  the  difference  betweene  actual  disseisin  and  disseisin  by 
election,  to  prove  that  the  disseisin  produced  by  the  feoffment,  however 
slender  or  tortious  the  estate  of  the  feoffor  may  be,  is  an  actual  disseisin.  It 
is  submitted  to  the  reader,  that  what  he  has  said  on  that  subject  is  confirmed 
by  what  Littleton  says  in  this  Section,  and  lord  Coke's  commentary  upon  it. 
The  discussion,  in  the  note  above  referred  to,  of  the  operation  of  a  feoffment 
and  the  discussion  in  note  l,p.  271.  b.  of  the  operation  of  conveyances  deriving 
their  effect  from  the  statute  of  uses,  will  perhaps  assist  the  reader  in  form- 
in  (^  accurate  notions  of  the  difference  in  the  operations  and  effect  of  feoff- 
ments, fines,  common  recoveries^  bargains  and  sales,  releases  and  wills. — 
[Note  317.] 


367.  b.  368.  a.]        Of  Warrantie.    L.  3,  C.  13.  Sect.  701. 

13  Ass.  8.  '<  y^(9  have  and  to  Jiold  to  them  joyntly,  d^c."     This  is  to  bee 

r^  ^'3  nr  qy  intended  of  a  joynt  purchase  in  fee ;  for  if  the  purchase 

22  H.  e'.  61.     '    were  to  the  father  and  the  sonne,  and  the  heires  of  the  sonne, 

8  H.  7.  6.  and  the  father  maketh  a  feoffment  in  fee  with  warrantie,  if  the 

(5  Rep.  79.)         sonne  entreth  in  the  life  of  the  father,  and  the  feoifee  re-enter, 

the  father  dieth,  the  sonne  shall   have  an  assise  of  the  whole ; 

and  so  is  the  booke  of  22  If.  6.  to  be  understood.     But  if  the 

sonne  had  not  entered  in  the  life  of  the  father,  then  for  the 

father's   moitie  it  had  beene  a   barre  to  the  sonne,   for   that 

(Post,  393.  a.)       therein  he  had   an  estate  for  life;  and  therefore  the  warrantie 

as  to  that  moitie  had   beene  collaterall  to  the  sonne,  and  by 

(1  Rep.  66.)         disseisin  for  the  Sonne's  moitie  ;  and  so  a  warrantie  defeated  in 

part,  and    stand   good  in    part.     And    this   appeareth    by  the 

example   that  Littleton  hath  put.      But   if  the   purchase  had 

been  to  the  father  and  sonne,  and   to  the  heires  of  the  father, 

(F.  N.  B.  192.  a.)  ^^^^  ^^^  ^^^^.^^  ^^  ^^^  ^^^^^  ^^  ^^^  jj^^  ^^  ^^xe  father,  as  to  the 

avoydance   of  the   warrantie,  had  not  availed  him,  because  his 
father  lawfully  conveyed  away  his  moitie  (1). 
Temps.  E.  1.  If  a  man  of  full  age  and  an  infant  make  a  feoiFment  in  fee 

Jg^%^26'  ^^*^  warrantie,  this  warranty  is  not  void  in  part,  and  good  in 
John  London's  part ;  but  is  good  for  the  whole  against  the  man  of  full  age, 
case,  14  H.  6.  and  voyd  against  the  infant ;  for  albeit  the  feoffment  of  an 
PI  ^T  6^6^  b  infant  passing  by  liverie  of  seisin  be  voydable,  yet  his  warrantie, 
5  Rep.'  119.) '       which  taketh  effect  only  by  deed,  is  meerely  voyd. 


Bisect.  701.  pf^-] 

ALSO,  if  A.  of  B.  bee  seised  of  a  mese,  and  F.  of  G.  that  no  right 
hath  to  enter  into  the  same  mese,  claiming  the  said  mese,  to  hold  to  him 
and  to  his  heires,  entreth  into  the  sayd  mese,  hut  the  same  A.  of  B.  is  then 
conthiually  abiding  in  the  sayne  mease;  in  this  case  the poss ession  of  the 
freehold  shall  bee  ahvays  adjudged  in  A.  of  B.  and  not  in  F.  of  G. 
because  in  such  case  where  two  bee  in  one  house,  or  other  tenements,  and 
the  one  claimeth  by  one  title,  and  the  other  by  another  title,  the  lau}  shal 
adjudge  him  in  possession  that  hath  right  to  have  the  possession  of  the  same 
tenements.  But  if  in  the  case  aforesayd,  the  said  F.  of  G.  made  a  feoff- 
ment to  certaine  barrettoi'S  and  extortioners  in  the  countrie,  to  have  main- 
tenance 


(1)  It  is  greatly  to  be  regretted,  that  sir  Edward  Coke  has  not  expressed 
himself  more  fully  on  the  subject  hinted  at  by  him  in  this  note,  the  defeating 
of  the  warranty  by  the  heir's  entry  or  claim  in  the  ancestor's  lifetime.  It  is 
thus  mentioned  by  lord  chief-baron  Gilbert,  Ten.  135.  The  heir  was  pre- 
sumed to  receive  a  recompense,  and  therefore  was  barred  if  he  did  not  claim 
during  the  life  of  his  ancestor ;  and  this  was  the  more  reasonable,  because 
such  recompenses  were  anciently  in  lands,  which  did  of  right  descend  to  the 
heir;  and  if  the  ancestor  did  alien  them,  the  heir  must  claim  his  own  during 
the  life  of  his  ancestors,  otherwise  he  could  never  claim  it,  inasmuch  as  this 
was  the  whole  time  of  limitation  for  the  heir  to  challenge  his  own  in  this  case ; 
and  if  he  slipped  that  time,  he  was  barred  forever,  inasmuch  as  there  might  be 
secret  conveyances  to  alien  the  recompense  for  the  benefit  of  the  heir,  which 
might  turn  to  the  prejudice  of  the  purchaser. — [Note  318.] 


L.  3.  C.  13.  Sect.  701.     Of  Warrantie.      [368.  a.  368.  b. 

tenance  from  them  of  (he  sayd  house,  hy  a  deed  of  feoffment  with  war- 
ranties hy  force  ivhereof  the  said  A.  of  B.  dare  not  abide  in  the  house, 
hut  goeth  out  of  the  same  (per  force  de  quel  le  dit  A.  de  B.  ne  osast  pas 
demurrer  en  le  mease,  mes  *  alast  hors  de  le  mease,)  this  warrantii' 
commenceth  hy  disseisin,  hecause  such  feoffment  ivas  the  cause  that  the 
sayd  A.  of  B.  relinquished  the  jyossession  of  the  same  housef. 

"  JJ/'IIURE  two  bee  in  one  house,  d-c.  and  the  one  claimeth  by  (Ant.  194.  a. 

one  title,  and  the  other  by  another  title,  &c"     For  the  ^.■^'*- "i^,  1„^""- 
1     .       r^  '  .   •         7-r  J  Abr.  661,  662. 

rule  IS,  Duo  non  j>ossunt  m  soliao  unam  rem  possiaere.  piowd.  233.  b.) 

19  H.  6.  fol.  28.  b.  per  Newton.     (Siderf.  385.  a.     Aut.  180.  b.  181.  a.) 

These  words  of  our  author  be  significant  and  materiall  :[/i]  [A]  17  E.  3.  fjQ. 

for  if  a  man  hath  issue  two  daughters,  bastard  eigne  and  mulier  n  Ass.  p.  23. 

puisne,  and  die  seised,  and  they  both  enter  generally,  the  sole  ^g  ^^''  ^^^^  y^ 

possession  shall  not  be  adjudged  only  in  the  mulier,  because  they  Hob.  120. 

both  claime  by  one  and  the  same  title  ;  and  not  one  by  one  title,  Ant.  189.  244. 

and  the  other  by  another  title,  as  our  author  here  saith.  10  Rep.  Lam- 

r---.  T^    .  "^  •  •         /.        1  1     •       ii         1   •    i'lr  pets  case.) 

[7]  If  the  tenaunt  m  an  assise  01  an  house  desire  the  plaintme  [,]  pj,  Com.  91. 

to  dine  with  him  in  the  house,  which  the  plaintiffe  doth  accord-  the  parson  of 
ingly,  and  so  they  bee  both  in  the  house  ;  and  in  truth  one  pre-  Honey  Lane  t 
tendeth  one  title,  and  the  other  another  title  ;  yet  the  law  in  this  (^^j  245.  b. 
cai5e  shall  not  adjudge  the  possession  in  him  that  right  hath  ;  Plowd.  93.  a.  b.) 
because  our  author  here  saith,  hee  claimed  not  his  right,  and  it 
should  be  to  his  prejudice  if  the  law  should  adjudge  him  posses- 
sion ;  and  a  trespasser  hee  cannot  bee,  because  hee  was  invited 
by  the  tenant  in  the  assize. 

"Barrettors."     A  barrettor  is  a  common  moover  and  exciter.  See  the  Indite- 
or  maintainer  of  suits,  quarrels,  or  parts,  either  in  courts,  or  else-  ment  of  a  com- 
where  in  the  countrey.     In  courts,  as  in  courts  of  record,  or  not  °^°°   c'ap^lT 
of  record ;  as  in  iAxe  countie,  hundred,  or  other  inferior  courts.   &  32. 
In  the  countrie  in  three  manners  :  first,   in  disturbance  of  the  40  E.  3.  33. 
peace :  secondly,  in  taking  or  keeping  of  possessions  of  lands  in  c^e^de^Barre- 
controversie,  not  only  by  force,  but  also  by  J8@°"  sub-  trie. 

[368.~|  tiltie  and  a  deceit,  and  most  commonly  in  suppression  (3  Inst.  175. 
b.     J  of  truth  and  right :  thirdly,  by  false  inventions,  and  jroH  Abr  355  ) 
sowing  of  calumniations,  rumors,  and  reports,  whereby  (i  R^,ii,  ^bj.^ 
discord  and  disquiet  may  grow  betweene  neighbours.  353.) 

"Barretor"  is  derived  of  this  word  (barret')  which  signifieth  33  E.  1.  Stat,  de 
not  only  a  wrangling  suit,  but  also  such  brawles  and  quarrels  in  c«;>nspnacie. 

,  •'  c  •  ^  Lib.  8  ubi  supra, 

the  countrey  as  are  aioresaid.  (3  Itep.  36.) 

"Extortioners."  Extortion  in  his  proper  sense,  is  a  great  mis-  P.  Com.  fol.  64. 

prision,  by  wresting  or  unlawfully  taking  by  any  officer,  by  colour  Lib.  10.  fol.  lOl, 

of  his  office,  any  money  or  valuable  thing  01  or  trom  any  man,  ^^^^_  ^ 

either  that  is  not  due,  or  more  than  is  due,  or  before  it  be  due ;  (3  Inst.  149.) 
quod  nou  est  dcbilum,  vrf  tpiod  est  ultra  dehitum,  vcl  ante  tcmjxus 
quod  est  dehitum  :  for  this  is  to  be  knowne,  that  it  is  provided  by 

the  [/]  statute  of  W.  1,  that  no  sheriffe,  nor  any  other  minister  ^1^  ^  1^  "^  26. 

42  E.  3.  5.     27  Ass.  14.     PI.  Com.  68.  (2  Roll.  Abr.  32. 

of 

*  se  en,  added  in  L.  and  M.  and  Roh.     f  &c.  added  in  L.  and  M.  and  Rob. 


368. 1).J 


(Plowd.  465. 
Noy,  111. 

2  Roll.  Abr.  32.) 
23  H.  6.  c.  10. 
33  n.  6.  22. 

21  H.  7.  17. 
Staunf.  49. 

3  E.  3.  Cor.  372. 


[/)]  nil.  13  Jac. 
Reg. 


ri.  Com.  in 
Dine  and  Mnn- 
pingliam's  case. 
Mir.  cap.  5.  g  1. 


7  E.4.  21. 


(3  Inst.  175. 
2  Inst.  212. 
Dyer,  655,  556. 
Sid.  212,  213. 
Noy,  62.) 


[k]  1  E.  3.  c.  14. 

20  E.  3. 

("iip.  4,  5. 

[r]  Mich.  7  Jac. 

in  the  Starre- 

Chamber. 

(DOC.  Pla.240.) 


Of  Warrantie.     L.  3.  C.  13.  Sect.  701. 

of  the  king,  shall  take  any  reward  for  doing  of  his  office,  but 
only  that  which  the  king  alloweth  him,  upon  paine  that  hee  shall 
render  double  to  the  partie,  and  be  punished  at  the  king's  plea- 
sure. And  this  was  the  antient  common  law,  and  was  punish- 
able by  fine  and  imprisonment ;  but  the  statute  added  the  afore- 
said penaltie.  But  some  latter  statutes  having  permitted  them 
to  take  in  some  cases  ;  by  colour  thereof  the  king's  officers  and 
ministers,  as  sheriffes,  coroners,  escheators,  feodaries,  gaolers, 
and  the  like,  doe  offi^nd  in  most  cases ;  and  seeing  this  act  yet 
standeth  in  force,  they  cannot  take  any  thing  but  where  and  so 
farre  as  latter  statutes  have  allowed  unto  them.  But  yet  such 
reasonable  fees  as  have  been  allowed  by  the  courts  of  justice  of 
antient  time  to  inferiour  ministers  and  attendants  of  courts  for 
their  labour  and  attendance,  if  it  be  asked  and  taken  of  the  sub- 
ject, is  no  extortion. 

And  all  this  was  resolved  [n]  by  the  whole  court  of  king's 
bench,  betweene  Shurley  plaintiffe,  and  Packer  deputie  of  one 
of  the  sheriffes  of  London,  in  an  action,  upon  the  case  in  the 
king's  bench. 

See  the  statute  of  21  H.  1  cap.  5.  setting  downe  the  fees  of 
ordinaries,  registers,  and  other  officers,  in  certaine  cases,  and 
many  other  statutes;  as  for  example,  the  statute  of  19  //.  7. 
cap.  8.  against  taking  of  shewage  (that  is,  taking  of  any  thing 
for  shewing  of  wares  and  merchandises  that  be  truly  customed 
to  the  king  before)  and  the  like. 

Of  this  crime  it  is  said,  that  it  is  no  other  than  robberie  ;  and 
another  saith,  that  it  is  more  odious  than  robberie ;  for  robberie 
is  apparent,  and  hath  the  face  of  a  crime  ;  but  extortion  puts  on 
the  visure  of  verture,  for  expedition  of  justice,  and  the  like; 
and  it  is  ever  accompanied  with  the  grievous  sinne  of  perjurie. 

But  largely  extortion  is  taken  for  any  oppression  by  extort 
power,  or  by  colour  or  pretence  of  right ;  and  so  Littleton  taketh 
it  in  this  place.  Extortio  is  derived  from  the  verbe  extorqueo; 
and  it  is  called  crimen  expilationia,  or  concussionis :  and  here 
barretors  and  extortioners  are  put  but  for  examples ;  for  if  the 
feoffement  be  made  to  any  other  person  or  persons,  the  law  is 
all  one. 

"To  have  maintenance  from  them."  Maintenance,  wianit^e- 
nentia,  is  derived  of  the  verbe  manutenere,  and  signifieth  in  law 
a  taking  in  hand,  bearing  up  or  upholding  of  quarrels  and  sides, 
to  the  disturbance  or  hindrance  of  common  right :  Culjia  est  rei 
se  immiscere  ad  se  non  pertinenti ;  and  it  is  twofold,  one  in  the 
countrey  and  another  in  the  court.  For  quarrels  and  sides  in 
the  court  [/i-]  the  statutes  have  inflicted  grievous  punishments. 
But  this  kinde  uf  maintenance  of  quarrels  and  sides  in  the  coun- 
trey is  punishable  only  at  the  suit  of  the  king,  [r]  as  it  hath  beene 
resolved.  And  this  maintenance  is  called  manutenentia,  or  manu- 
tentio  ruralis,  for  example,  as  to  take  possessions,  or  keepe  pos- 
sessions, whereof  Littleton  here  speaketh,  or  the  like  (1). 

The 


(1)  Whether  an  attorney's  laying  out  money  for  his  client  be  maintenance, 
see  Pierson  v.  Hughes,  Freeman,  71.  81. — By  the  ancient  Roman  law,  there 
were  few  cases  in  which  a  person  was  admitted  to  plead  by  an  attorney, 
according  to  the  rule,  Nemo  alieno  nomine  le<je  agere  potest.     Recourse  was 

therefore 


L.  3.  C.  13.  Sect.  701.     Of  Warrantie.    [368.  b.  369.  a. 

The  other  is  called  cur{alis,heca.use  it  is  done  pendente  placiio 
in  the  courts  of  justice;  and  this  was  an  offence  at  the  common 
law,  and  is  threefold. 

First,  to  maintaine  to  have  part  of  the  land,  or  any  thing  out  33  E.  1  Stat.  2. 
of  the  land,  or  part  of  the  debt,  or  other  thing  in  plea  or  suit;  '"  ^^^- 
and  this  is  called  camhipartia,  chanipertie.  6  E.  3.  33. 

22  H.  6.  7.  9  H.  7.  22.  (2  Roll.  Abr.  114.)  30  A?!=.  5.  19  E.  4.  3.  20  H.  6.  12. 
34  H.  6.  2.  11  H.  6.  11.  8  H.  5.  8.  10  E.  4.  19.  W.  1.  cap.  25.  28  W.  2.  cap. 
49.  Artie,  super  Cart.  cap.  11.  F.  N.  B.  171,  172.  Mirror,  cap.  1  §  5.  (Mo.  6. 
Ant.  157.     Hob.  294.) 

The  second  is,  when  one  maintaineth  the  one  side, 

t369."|  without  having  any  part  of  the  thing  in  fi®"'  plea,  or 
a.     J  suit;  and  this  maintenance  is  twofold,  general  main- 
tenance, and  speciall  maintenance ;  whereof  you  shall 
reade  at  large  in  our  bookes,  which  were  too  long  here  to  be  in- 
serted. 

The  third  is  when  [m]  one  laboureth  the  jury,  if  it  be  but  to  [»]  13  H.  4. 16. 
appeare,  or  if  he  instruct  them,  or  put  them   in  feare,  or  the  h  ^^^0^^^* 
like,  he  is  a  maintainor,  and  he  is  in  law  called  an  embraceor,  37  jj[  f^  ^{ 
and  an  action  of  maintenance  lyeth  against  him ;  and  if  he  take 
money,  a  decies  tantum  may  be  brought  against  him.     And 
whether  the  jury  passe  for  his  side  or  no,  or  whether  the  jurie 
give  any  verdict  at  all,  yet  shall  he  be  punished  as  a  maintainer 
or  embraceor  either  at  the  suit  of  the  king  or  partie. 

liere  in  this  case  tliat  Littleton  putteth,  the  feoffment  is  void 
by  the  statute  [a]  of  1  R.  2 ;  for  thereby  it  is  enacted,  that  |-„-]  j  j^_  2. 
feoffements  made  for  maintenance  shall  be  holden  for  none,  and  cap.  9.    Vid. 
of  no  value,  so  as  Littleton  putteth  his  case  at  the  common  law;  27  11.  2.  fol.  23. 
for  he  seemeth  to  allow  the  feoffement,  where  he  saith  such  feoff- 
ment was  the  cause,  &c. :  but  some  have  said  that  the  feoffment 
is  not  voide  betweene  the  feoffor  and  feoffee,  but  to  him  that 
right  hath. 

Now,  since  Littleton  wrote,  there  is  a  notable  statute  [i]  made  [t]  32  H.  8. 
in  suppression  of  the  causes  of  unlawfull  maintenance  (which  is  cap.  9. 
the  most  dangerous  enemie  that  justice  hath),  the  effect  of  which  (    °^  • 
statute  is, 

First,  that  no  person  shall  bargaine,  buy,  or  sell,  or  obtaine  (2  Roll.  Abr. 
any  pretended  rights  or  titles.  113, 114. 

Secondly,  or  take,  promise,  grant  or  covenant  to  have  any  ^°^-  ^^^'' 
right  or  title  of  any  person  in  or  to  any  lands,  tenements,  or 
hereditaments;  but  if  such  person  which  so  shall  bargaine,  &c. 
their  ancestors,  or  they  by  whom  he  or  they  claime  the  same, 
have  beene  in  possession  of  the  same,  or  of  the  reversion  or  re- 
mainder thereof,  or  taken  the  rents  or  profits  thereof  by  the 
space  of  one  whole  yeare,  &c.  upon  paine  to  forfeit  the  whole 
value  of  the  lands,  &c.  and  the  buyer  or  taker,  &c.  knowing  the  (i  Leon.  167. 
same,  to  forfeit  also  the  value.  208. 

Thirdly,  Pl<'wd.S9.a.) 


therefore  had  to  a  fiction  at  law,  by  which  it  was  supposed  that  the  property 
of  the  thing  in  contest  was  made  over  to  the  attorney.  The  consequence  was, 
that  the  proceedings  were  carried  on  in  the  name  of  the  attorney,  and  even 
the  sentence  passed  upon  him.  Hence  he  was  called  the  dominus  litis.  See 
Borhmer  de  dominio  litis,  I.  12.  Pothicr  Pandecta  Jastinianea',  lib.  3.  tit.  3. 
§  2.— [Note  319.] 


369.  a.]  Of  Warrantie.      L.  3.  C.  13.  Sect.  701. 

Thirdly,  provided  that  it  shall  be  lawful!  for  any  person,  being 
in  lawful!  possession,  by  taking  of  the  yearely  farrae,  rents  or 
profits,  to  obtaine  and  get  the  pretenced  right  or  title,  &c.  of 
any  lands  whereof  he  or  they  shall  be  in  lawfuU  possession. 

For  the  better  understanding  of  which  statute,  you  must  ob- 
serve, that  title  or  right  may  be  pretenced  two  manner  of  wayes : 
(I  Cro.  232,  First,  when  it  is  meerely  in  pretence  or  supposition,  and  no- 

lfcom.fol.80.   t^'^g^°,^«"ty         _  _ 

&c.  Partridge's  becondly,  when  it  IS  a  good  right  or  title  in  verity,  and  made 
case.  pretenced  by  the  act  of  the  partie ;  and  both  these  are  within 

the  said  statute :  for  example,  if  A.  be  lawfull  owner  of  land,  and 
is  in  possession,  B.  that  hath  no  right  thereunto  granteth  to,  or 
contracteth  for  the  land  with  another,  the  grantor  and  the  grantee 
(albeit  the  grant  be  meerely  void)  are  within  the  danger  of  the 
statute ;  for  B.  hath  no  right  at  all,  but  only  in  pretence.  If  A. 
be  disseised  in  this  case,  A.  hath  a  good  lawfull  right;  yet  if  A. 
being  out  of  possession,  granteth  to,  or  contracteth  for  the  land 
with  another,  he  hath  now  made  his  good  right  of  entrie  pre- 
tenced within  the  statute,  and  both  the  grantor  and  grantee 
within  the  danger  thereof.  A  fortiori  of  a  right  in  action. 
Quod  nota. 

It  is  further  to  be  knowne,  that  a  right  or  title  may  be  consi- 
dered three  manner  of  wayes. 

First,  as  it  is  naked  and  without  possession.     Secondly,  when 
the  absolute  right  commeth  by  release  or  otherwise  to  a  wrong- 
full  possession;  and  no  third  person  hath  either  jus  jiroprieiatis, 
or  jus  2)ossessio7iis.     The  third  when  he  hath  a  good  right,  and 
a  wrongfull  possession.     As  to  the  first,  somewhat  hath  beene 
said,  and  more  shall  be  said  hereafter.  As  to  the  second,  taking 
the  former  example,  if  A.  be  disseised,  and  the  disseisee  release 
unto  him  (N),  he  may  presently  sell,  grant,  or  contract  for  the 
PI.  Com.  Par-      land,  and  need  not  tarrie  a  yeere ;  for  it  is  a  rule  upon  this  sta- 
sup^^e  E.^6."  ^  tute,  that  whosoever  hath  the  absolute  ownership  of  any  land, 
Brooke,  tit.  tenements,  or  hereditaments  (as  in  this  case  the  disseisor  hath), 

Maintenance,  there  such  owner  may  at  his  pleasure  bargaine,  grant,  or  contract 
(Cro  Car  388  ^^^  ^^*^  land,  for  no  person  can  thereby  be  prejudiced  or  grieved. 
Plowd.  89.  a.)  And  so  if  a  man  mortgage  his  land,  and  after  redeeme  the  same; 
or  if  a  man  recover  land  upon  a  former  title,  or  be  remitted  to 
an  ancient  right,  he  may  at  any  time  bargaine,  grant,  or  con- 
tract for  the  land,  for  the  reason  aforesaid.  As  to  the  third,  if 
in  the  case  aforesaid  the  disseisor  dieth  seised,  and  A.  the  dis- 
seisee entreth,  and  disseise  the  heire  of  the  disseisor,  albeit  he 
hath  an  antient  right,  yet  seeing  the  possession  is  unlawful!,  if 
he  bargaine  or  contract  for  the  land  before  hee  hath  beene  in 
possession  by  the  space  of  a  yeare,  he  is  within  the  danger  of 
the  statute,  because  the  heire  of  the  disseisor  hath  right  to  the 
possession,  and  he  is  thereby  grieved,  et  sic  de  similihus :  and 
albeit  he  that  hath  a  pretenced  right  (and  none  in  verity)  getteth 
the  possession  wrongfully,  yet  the  statute  extendeth  unto  him 
as  well  as  where  he  is  out  of  possession. 
23  Eliz  Dier  Note,  the  words  of  the  statute  be  (any  pretenced  right),  there- 

374.  PL  Com.  fore  a  lease  for  yeares  is  within  the  statute;  for  the  statute  saith 
Partridge's  case,  not  (the  right),  but  (any  right),  and  the  oflFendour  shall  forfeit 
^^^'  ^^'  the  whole  value  of  the  land.     And  where  the  statute  speaketh 

of  rights  in  the  plurall  number,  yet  any  one  right  is  within  the 
[a]  Mich.  30  <fc     Statute,      [a]  But  yet  if   a   man    make  a  lease  for  yeares  to 

31  Eliz.  2811. 

inter  Finch  &  Cockham  in  Com.  Banc.     (Mo.  266.)     (2  Roll.  Abr.  114.) 

another 

(N)  t.  e.  the  disaeiaur. 


L.  3.  C.  13.  Sect.  701.      Of  Wan-antie.  [369.  b. 

another  to  the  intent  to  trie  the  title  in  an  ejectionse 

[369.~|  firmce,  that  is  out  of  the  statute,  OC?"  because  it  is  in 
b.     J  a  kinde  of  course  of  law  ;  but  if  it  be  made  to  a  great 
man,  or  any  other  to  sway  or  countenance  the  cause, 
that  is  within  this  statute. 

Also  the  statute  speakes  (of  any  right  or  title  to  any  land,  &c.) 
[Z»]  A  customary  right,  or  a  pretence  thereof  to  lands  holden  [i]  Lib.  4.  fol. 
by  copie,  is  within  this  statute.  ^^-    Copihold 

The  said  proviso  (which  is  rather  added  for  explanation,  than  g  g  '^g  jj^ 
of  any  necessitie)  extendeth  only  to  a  pretenced  right  or  title.  Maintenance. 
and  (A)  to  a  good  and  cleare  right;  and   therefore  without  Brooke,  38. 
question,  any  that  hath  a  just  and  lawfuU  estate  may  obtaine 
any  pretenced  right  by  release  or  otherwise ;  for  that  cannot  be 
to  the  prejudice  of  any  :  nay,  as  hath  been  said,  a  disseisor  that  (5  Rep.  60.) 
hath  a  wrongfull  estate  may  obtaine  a  release  of  the  disseisee, 
and  that  is  not  within  the  body  of  the  act,  and  consequently 
standeth  not  in  need  of  any  proviso  to  protect  him. 

And  therefore  [c]  if  there  be  tenant  for  life,  the  remainder  [c]  34  II.  8. 
in  fee  by  lawfull  and  just  title,  he  in  the  remainder  may  obtaine  ^^^^>  ^2. 
and  get  the  pretenced  right  or  title  of  any  stranger,  not  only  for 
that  the  particular  estate  and  the  remainder  are  all  one,  but  for 
that  it  is  a  meane  to  extinguish  the  seeds  of  troubles  and  suits, 
and  cannot  be  to  the  prejudice  of  any,  as  hath  beene  said.  And 
wheje  the  statute  saith,  (being  in  lawfull  possession  by  taking 
the  yearely  rent,  &c.)  those  words  are  but  explanatory,  and  put 
for  example ;  for  howsoever  he  be  lawfully  seised  in  possession, 
reversion,  or  remainder,  it  sufficeth  though  he  never  tooke  profit. 
But  the  matter  observable  upon  this  proviso,  which  is  worthy  of 
observation,  is,  that  if  a  disseisor  make  a  lease  for  life,  lives,  or 
yeares,  the  remainder  for  life,  in  tayle,  or  in  fee,  he  in  remainder 
cannot  take  a  promise  or  covenant,  that  when  the  disseisee  hath 
entred  upon  the  land,  or  recovered  the  same,  that  then  he  should 
convey  the  land  to  any  of  them  in  remainder,  thereby  to  avoid 
the  particular  estate,  or  the  interest  or  estate  of  any  other ;  for 
the  words  of  the  proviso  be  (buy,  obtaine,  get,  or  have  by  any 
reasonable  way  or  meane)  and  that  is  not  by  promise  or  covenant 
to  convey  the  land  after  entry  or  recovery ;  for  that  is  neither 
lawfull,  being  against  the  expresse  purview  of  the  body  of  the 
act,  and  not  reasonable,  because  it  is  to  the  prejudice  of  a  third 
person.  But  the  reasonable  way  or  meane  intended  by  the  sta- 
tute, is  by  release  or  confirmation,  or  such  conveyances  as  amount 
to  as  much  :  and  this  agreeth  with  the  letter  of  the  law,  viz.  the 
pretenced  right  or  title  of  any  other  person ;  and  rights  and 
titles  are  by  release  or  confirmation,  as  by  reasonable  wayes  and 
meanes  lawfully  transferred  and  extinct:  and  the  words  of  pro- 
mise or  covenant,  &c.  which  are  prohibited  by  the  body  of  the 
act  are  omitted  in  the  proviso. 

^^Relinquished  the  possession,  tfr."  This  must  be  understood,  (2  Rep.  31. 
that  before  livery  of  seisin  upon  the  feoifement,  A.  of  B.  de-  '^°*"  '*^'  ^'^ 
parted  out  of  the  house ;  for  otherwise  the  livery  and  seisin 
should  be  void,  because  A.  of  B.  was  in  possession.  And  Lit- 
tleton here  saith,  by  a  deed  of  feoffment,  so  as  albeit  the  deed 
were  made  before  the  departure  it  is  not  materiall ;  but  the  de- 
parture must  be  before  the  livery  of  seisin,  for  that  doth  worke 
the  disseisin.  And  yet  that  which  Littleton  saith  is  true,  that 
the  feofferaent  was  the  cause  that  he  relinquished  his  possession; 
for  otherwise  he  would  not  have  done  it.  But 

(A)  Here  the  word  "not"  seems  to  be  omitted  by  mistake. 


369.  b.  370.  a.]  Of  Warrantie.  L.  3.  C.  13.  Sect.  702, 703. 

But  admit  that  A.  of  B.  had  departed  for  any  other  cause, 
yet  if  F.  of  G.  enter  and  enfeoffe  certaine  barretors  or  extor- 
tioners, or  any  other  with  warrantie,  this  is  a  warrantie  that 
commenceth  by  disseisin,  for  that  the  feofifement  worketh  a  dis- 
seisin. 

Sect.  702. 


ALSO,  if  a  7nan  which  hath  no  right  to  enter  into  other  tenements^ 
enter  into  the  same  tenements,  and  incontinently  make  afeoffement 
thereof  to  others  by  his  deed  with  warranty,  a7id  deliver  to  them  seisin ^ 
this  warranty  commenceth  hy  disseisin,  because  the  disseisin  and  feoff e- 
ment  were  made  as  it  were  at  one  time.  And  that  this  is  law,  you  may 
see  in  a  plee  *  M.  11  E.  3.  in  a  writ  of  formedon  in  the  reverter. 

See  before  in  ^""HIS  doth  esplaine  that  which  hath  beene  said  before.  And 
the  Chapter  of  i  albeit  Littleton  useth  the  words  (and  incontinently  thereof 
(.i'^Rep!*79.)  Diake  a  feoffement) ;  and  that  in  this  case  of  Littleton  the  dis- 
46  E.  3.  6.  seisin  and  feoffement  were  made  (quasi  uno  temjjore),  yet  if  the 

disseisin  were  made  to  the  intent  to  make  a  feoffment  with  war- 
rantie, albeit  the  feoffement  be  long  after  this  (as  hath 
beene  said)  is  a  warrantie  0^  that  commenceth  by  rSyO."! 
disseisin.  L     ^-     J 

[fZ]  31  E.  3.  tit.        "  3Iich.  11  E.  3."    This  is  mistaken,  and  should  be  [d]  31  E. 
arr.  28.  g^  ^^^  g^  jg  ^j^g  originall,  which  case  you  shall  see  in  Master 

Fitzherbert' s  Abridgement,  for  there  is  no  booke  at  large  of  that 
yeare.  Hereby  you  may  perceive  that  learned  men  looke  not 
only  to  the  cases  reported,  but  unto  records,  as  you  may  see 
Littleton  did;  for  Fitzherbert  put  this  case  in  print  long  after, 
as  elsewhere  hath  been  shewed. 


Sect.  703. 

IT/'ARMANTY  lineall  is,  where  a  man  seised  of  lands  in  fee  maketh 
a  feoffement  by  his  deed  to  another,  and  bindes  himselfe  and  his 
heires  to  tvarrantie,  and  hath  issue  and  die,  and  the  warranty  descend 
to  his  issue,  that  is  a  lineal  warranty  (Garrantj  lineal  est,  lou  home 
seisie  de  terres  en  fee,  f  fait  feoffement  per  son  fait  a  un  auter,  et  oblige 
luy  et  ses  heires  a  garranty,  et  ad  issue  et  morust,  et  le  garrantie  dis- 
cendist  a  son  issue,  ceo  est  lineal  garranty).  Atid  the  cause  ivhy  this  is 
called  lineall  tvarrantie,  is  not  because  the  tvai'ranty  descendeth  from  the 
father  to  his  heire  (Et  la  cause  pur  ceo  que  |  est  dit  lineal  garrantie,  n'est 
pur  ceo  que  le  garranty  discendist  de  le  pier  a  son  heire) ;  but  the  cause 
is,  for  that  if  no  such  deed  tvith  warrantie  had  been  made  by  the  father, 
then  the  right  of  the  tenements  should  descend  to  theheire,  and  theheire 
should  convey  the  discent  from  his  father  (et  I'heire  convey  eroit  le  dis- 
cent  de  ||  son  pier),  ^c. 

"  WARRANTY 

*  M.  11. — anno  xxxi.  L.  and  M.         \  ceo  added  in  L.  and  31.  and  Roh. 
and  Roh.  \\  son — le,  L.  and  M.  and  Roh. 

f  et  added  in  L.  and  31.  and  Roh. 


L.  3.  C.  13.  Sect.  703.    Of  Warrantie.     [370.  a.  370.  b. 

"  JJ/'ARRANTY  Uneall,  &c."     A  warrantie  lineall  is  a  cove-  (i  Rep-  !•) 

nant  reall  annexed  to  the  land  by  him  which  either  was 
owner,  or  might  have  inherited  the  land,  and  from  whom  his 
heire  lineall  or  collaterall  might  by  possibilitie  have  claimed  the 
land  as  heire  from  him  that  made  the  warranty  ;  whereoi  Littleto7i  (Post.  371.  a. 
himselfe  putteth  divers  cases,  which  shall  be  explained  in  their  2'^^-  ^-^ 
proper  places.     And  in  this  case  put  in   this   Section,  Littleton 
(once  for  all)  sheweth,  that  the  reason  of  the  example  here  put, 
is  because  if  no  such  alienation  with  warrantie  (for  so  is  Littleton  (3  Rep.  59.) 
to  be  intended)  had  beene  made,  the  very  lands  had  descended  v.^^^'  ^j^ 
to  the  heire,  so  as  the  case  being  put  of  lands  in  fee  simple,  the 
alienation  without  the  warrantie  had  barred   the  heire.     And 
note,  that  it  is  called  a  lineall  warrantie  (1)  not  because  it  must 
descend  upon  the  lineall  heire;  for  be  the  heire  lineall  or  col- 
laterall, if  by  possibilitie  he  might  claime  the  land  from  him  that 
made  the  warrantie,  it  is  lineall;  having  regard  to  the  warrantie, 
and   title   of  the  land.     And  also  it  is  called  lineall,  in  respect 
that  the  warrantie  made  by  him  that  had  no  right  or  possibility 
of  right  to  the  land,  is  called  collaterall,  in  regard  that  it  is  col- 
laterall to  the  title  of  the  land.     And  it  is  also  to  be   observed, 
that  in  all  the  cases   that  Littleton  hath  put,  or  shall  put,  the 
lineall  or  collaterall  warranty  doth  binde  the  heire ;  and  there- 
fore the  successour  claiming  in  another  right  shall  not  be  bound 
by  the  warrantie  of  any  naturall  ancestour.    For  which  cause  [c]  [<■]  27  H.  6. 
in  a,  juris  utrum  brought  by  a  parson  of  a  church,  the  collaterall  ^"'■'■-  '*^- 
warrantie  of  his  ancestour  is  no  barre,  for  that  he  demandeth 
the  land  in  the  right  of  his  church  in  his  politike  capacitie,  and 
the  warrantie  decendeth  on  him  in  his  naturall  capacitie.  [(7]  But  [f/]  34  E.  3. 
some  have  holden,  that  if  a  parson  bring  an  assise,  that  a  col-  ^^''^-  '^^• 
laterall  warranty  of  his  ancestour  shall  binde  him ;  and 

[370.1  their  reason  is,  for  B^°  that  the  assise  is  brought  of  his 
b.     J  possession  and  seisin,  and  he  shall  recover  the  meane 
profits  to  his  own  use  ;   but  seeing  he  is  seised  of  the 
freehold  whereof  the  assise  is  brought  in  jnre  ecdesice,  which  is 
in  another  right  than  the  warrantie,  it  seemeth  that  it  should  not 
he  any  barre  in  the  assise.     The  like  law  is  of  a  bishop,  arch- 
deacon, 

(1)  As  to  the  distinction  between  lineal  and  collateral  warranty: — By  the 
definitions  given  in  this  place  of  lineal  warranty,  it  appears  to  be  distinguished 
from  collateral  warranty  chiefly  by  this  circumstance,  that  he  on  whom  it 
descends  might  possibly  have  claimed  the  land  as  heir  to  him  that  made  the 
warranty,  and  whether  he  claims  as  heir  lineal  or  as  heir  collateral,  the 
warranty  is  equally  lineal.  But  he  must  claim  as  heir ;  for  if  an  estate  is 
limited  to  the  sons  of  any  person  successively  in  tail,  and  the  eldest  son  aliens 
with  warranty,  and  dies  without  issue,  the  second  son  is  heir  at  law  to  the 
eldest  son  :  he  does  not  however  claim  as  heir,  but  as  purchaser,  and  therefore 
the  warranty  is  collateral  to  him.  So  if  an  estate  is  limited  to  the  father 
for  life,  and  after  his  decease  to  the  sons  successively  in  tail,  and  the  father 
aliens  with  warranty  and  dies,  the  warranty  descends  on  his  eldest  son  and 
heir;  but  as  he  claims  as  purchaser,  not  as  heir,  the  warranty  is  collateral  to 
him.  But  though  he  must  claim  as  heir,  it  is  not  necessary  he  should  make 
his  title  immediately  as  heir  to  him,  (see  Sect.  706.)  neither  is  it  necessary  he 
should  derive  from  him  alone.  See  Sect.  714. — An  attempt  will  be  made, 
note  2,  page  373.  b.  to  explain  the  real  distinction  between  lineal  and  collateral 
warranty.— [Note  320.] 


370.  b.]  Of  Warrantie.      L.  3.  C.  13.  Sect.  704. 

deacon,  deane,  master  of  an  hospitall,  and  the  like,  of  their  sole 
possessions,  and  of  the  prebend,  vicar,  and  the  like. 


[*]  45  Ass.  6.  "  And  hindes  Mmselfe  and  his  heires"  [*]  King  ff.  3.  gave  a 

Pi^'c^"  ^%u  ^'    ^^^^^^  to  Edmund  earle  of  Cornewall,  and  to  the  heires  of  his 
A  553,™  54.  body  saving  the  possibilitie   of  reverter,  and   died  :  the  earle, 

(8  Rep.  1.  before  the  statute  of  W.  2  cap.  1.  de  donis  conditionalihus,  by- 

Ant.  19.  b.)  j^jgjj  gj^yg  ^Ijg  gj^j(j  mannor  to  another  in  fee  with  warrantie  in 

exchange  for  another  mannor,  and  after  the  said  statute  in  the 
28  yeare  of  ^.  1.  dieth  without  issue,  leaving  assets  in  fee  simple ; 
which  warrantie  and  assets  descended  upon  king  E.  1.  as  cosiu 
germaine  and  heire  of  the  said  earle,  viz.  son  and  heire  of  king 
Henry  the  third,  brother  of  Richard  earle  of  Cornwall,  father  of 
the  said  earle  Edmund.  And  it  was  adjudged,  that  the  king,  as 
Vide  27  H.  6.  heire  to  the  said  earle  Edmund,  was  by  the  said  warrantie 
Garr.  48.  and  assets  barred  of  the  possibilitie  of  reverter,  which  he  had 

efafr  n  expectant   upon  the    said  gift,  albeit  the  warrant  and   assets 

descended  upon  the  naturall   body  of  king  E.  1.  as  heire  to  a 
subject;  and  king  E.   1.  claimed  the  said  mannor,  as  in  his 
reverter  injure  coronas  in  the  capacity  of  his  body  politike,  in 
Vide  Sect.  711,    which  right  he  was  seised  before  the  gift.     In  this  case,  how  by 
712.  t]3e  death  of  the  said  earle  Edmund  without  issue,  the  king's 

9  Rep.  132.  b.      title  by  reverter,  and  the  warrantie  and  assets,  came  together, 
(Vaug.  379.)        and  that  the  warrantie  was  collaterall,  yet  the  king  shall  not  be 
barred  without  assets,  as  a  subject  shall  be ;  and  many  other 
things  are  to  be  observed  in  this  case,  which  the  learned  reader 
will  observe  (1). 


(8  Rep.  51.)  Sect.  704. 

f^OR  if  there  be  father  and  sonne,  and  the  sonne  'purchase  *  lands  in 
fee,  and  the  father  of  this  disseiseth  the  sonne,  and  alieneth  to  ano- 
ther ill  fee  by  his  deed  (et  le  pier  de  ceo  disseisist  son  fits  et  f  aliena  a 
un  auter  en  fee  per  son  fait,)  and  by  the  same  deed  binde  him  and  his 
heires  to  warrant  the  same  tenements,  ^c.  and  the  father  dieth  ;  now  is 
the  son  barred  to  have  the  said  tenements  ;  for  he  cannot  by  any  suit, 
nor  by  other  meane  of  laiv,  have  the  same  lands  by  cause  of  the  said 
ivarrantie.  And  this  is  a  collaterall  warrantie  ;  and  yet  the  ivarrantie 
descendeth  lineally  from  the  father  to  the  sonne. 

Sect. 

*  lands — tenements,  L.  and  M.  and         f  ceo  added  in  L.  and  31.  and  Rah. 
Koh. 


(1)  The  king  was  in  this  case  barred  of  the  possibility  of  reverter  descending 
to  him  injure  coronce,  by  warranty  and  assets  from  a  subject  decending  on  his 
body  natural ;  for  in  all  likelihood  those  lands  will  descend  to  the  same  person 
to  whom  the  crown  will  descend,  and  consequently  will  be  a  good  recompense 
for  the  loss  of  the  crown  lands,  but  in  the  case  of  the  parson,  his  successor  can 
have  no  benefit  of  what  the  predecessor  has  in  his  natural  capacity.  Hawk. 
Abr.  474.— [Note  321.] 


L.  3.  C.  13.  Sect.  705-706.      Of  Warrantie.        [371.  a. 


Sect.  705. 

J)  TIT  because  if  no  such  deed  with  warrantie  had  beene  made,  the  sonne 
in  no  manner  could  convey  the  title  which  hee  hath  to  the  tene- 

t3  71 .  "I  mentsfrom  his  father  unto  him,  inasmuch  as  his  ^Cj"  father  had 
a-  J  no  estate  in  right  in  the  laiids ;  wherefore  such  ivarrar^tie  is 
called  collaterall  warrantie,  inasmuch  as  he  that  maketh  the 
ivarrantie  is  collaterall  to  the  title  of  the  tenements :  and  this  is  asmuch 
to  say,  as  hee  to  tvhom  the  warrantie  descendeth,  could  not  convey 
to  him  the  title  which  hee  hath  in  the  tenements  by  him  that  made  the 
warrantie,  in  case  that  no  such  ivarrantie  were  made. 

HERE  Littleton  putteth  an  example,  proving  that  it  is  not  5  E.  3. 14. 
called  lineall,  because  it  descendeth  lineally  from  the  father  46  E.  3.  6. 
to  the  son ;  for  in  this  case  the  warrantie  descendeth  lineally,  g  j^  'j  " 
and  yet  is  a  collaterall  warrantie.     In  this  example  you  must  Garr.  100. 
intend  that  the  disseisin  was  not  of  intent  to  alien  with  warrantie  ^^'^^-  Sect.  716. 
to  barre  the  sonne ;  but  here  the  dissesin  being  done  to   the 
Sonne,  without  any  such  intent,  the  alienation  afterwards  with 
warrantie  doth  barre  the  sonne;  because  that  albeit  the  warrantie 
doth  lineally  descend,  yet  seeing  the  title  is  collaterall,  that  is, 
that  the  sonne  claimeth  not  the  land  as  heire  to  his  father,  there- 
fore in  respect  of  the  title   it  is  a  collaterall  warrantie.     And 
thus  doth  Littleton  agree  [e]  with  the  authoritie  of  our  bookes.  [e]  46  E.  3.  6. 
So  as  the  diversities  do  stand  thus.     First,  where  the  disseisin  5  E.  3. 14. 
and  feoffment  are  uno  tempero,  and  where  at  severall  times.  1^  H.   .     . 
Secondly,  where  the  disseisin  is  with  intent  to  alien  with  war- 
rantie, and  where  the  disseisin  is  made  without  such  intent,  and 
the  alienation  with  warrantie  afterwards  made. 


Sect.  706. 


ALSO,  if  there  bee  grandfather,  father,  and  son,  and  the  grandfather 
is  disseised,  in  whose  possession  the  father  releaseth  by  his  deed  with 
warrantie,  ^c.  and  dieth,  and  after  the  grandfather  dieth ;  now  the  son 
is  barred  to  have  the  tenements  by  the  ivarranty  of  the  father.  And  this 
is  called  a  lineall  warrantie,  because  if  no  such  ivarranty  were,  the  son 
could  not  convey  the  right  of  the  tenements  to  him,  nor  shew  hoiv  hee  is 
heire  to  the  grandfather  but  by  means  of  the  father. 

HERE   Littleton  putteth   an  example  where   the    son   must  1  H.  4.  33. 
claime  the  land  as  heire  to  his  grandfather  ;  and  yet  because  ^5  E.  8. 
hee  cannot  make  himselfe  heire  to  his  grandfather  but  by  his 
father,  it  is  lineall. 

And  it  is  to  bee  observed,  that  the  warrantie  in  this  case  de- 
scended upon  the  son,  before  the  discent  of  the  right,  which  hap- 
pened by  the  death  of  the  grandfather,  in  whom  the  right  was. 
Vide  Littleton  Cap.  de  Releases,  and  after  in  this  Chapter,  Sect. 
707.  and  741. 

"The 


371.  a.  371.  b.J     Of  Warrantie.    L.  3.  C.  13.  Sect.  707. 

(3  Rep.  59.  "  The  father  releaseth  hj/his  deed  with  icarrantie,  &c."  [/]  It 

Ant.  265.  a.  is  to  be  knowne,  that  upon  everie  conveyance  of  lands  tenements, 

Post.  386.)  Qj.  iiereditaments,  as  upon  fines,  feoffments,  gifts,  &c. 

[/]  UE.  3.  releases  and  confirmations  made  to  the  OCT  tenant  of  r371.1 

Voucher,  108  ^j^^  jj^^j^  ^  warrantie  may  bee  made,  albeit  hee  that  L     ^"     J 

18  E.  3!  Ibid.  6."  makes  the  release  or  confirmation,  hath  no  right  to  the 

10  e!3.  52.  land,  &c. ;  but  some  doe  hold,  that  by  release  or  confirmation, 

21  E.  3.  27.  where  there  is  no  estate  created,  or  transmutation  of  possession, 

44  E  '3.      '  ^  warrantie  cannot  be  made  to  the  assignee. 

Cont'.  ie  Vouch.  22.     12  H.  7.  1.     Vide  Sect.  733.  738.  745.     (Post.  385.  a. 


Sect.  707. 

A  LSO,  if  a  man  hath  issue  two  sonnes  and  is  disseised,  and  the  eldest 
Sonne  release  to  the  disseise?-  hy  his  deed  with  warrantie,  ^-c.  and  dies 
without  issue,  and  afterwards  the  father  dieth,  this  is  a  lineall  warrantie 
to  the  younger  soniie,  because  albeit  the  eldest  sonne  died  in  the  life  of 
the  father,  yet  by  possibilitie  it  might  have  beene,  that  he  might  convey  to 
him  the  title  of  the  land  by  his  elder  brother,  if  no  such  warrantie  had 
beene.  For  it  might  be,  that  after  the  death  of  the  father  the  elder 
brother  entred  into  the  tenements  and  died  ivithout  issue,  and  then  the 
younger  sonne  shall  convey  to  him  the  title  by  the  elder  son  (et  donque  le 
puisne  fits  conveyera  a  luy  le  title  per  I'eigne  *  fits.)  But  in  this  case 
if  the  younger  sonne  releaseth  with  warrantie  to  the  disseisor,  and  dieth 
without  issue,  this  is  a  collaterall  warrantie  to  the  elder  son,  because 
that  of  such  land  as  was  the  father's,  the  elder  by  no  j)ossibilitie  can 
convey  to  him  the  title  by  yneans  of  the  younger  son  (Mes  en  tiel  cas,  si 
le  puisne  fits  relesse  ove  garrantie  a  le  disseisor,  et  morust  sans  issue, 
ceo  est  un  collateral  garrantie  al  eigne  f  fits,  pur  ceo  que  de  tiel  terre 
que  fuit  al  pier,  I'eigne  per  nul  possibilitie  poit  conveyer  a  luy  le  title 
per  meane  de  le  puisne  |  fits). 

35  E.  3.  Gar.  73-  TTERE  Littleton  putteth  an  example,  where  the  heire  that  is 
11  H.  4.  33.  Xl  to  be  barredby  the  warrantie,  is  not  to  make  his  discent  by 
(IRep.  66.)  j^j^  ^Yxa.t  made  the  warrantie,  as  in  the  case  before;  and  yet  be- 
cause by  possibilitie  he  might  have  claimed  by  the  eldest  sonne, 
if  he  had  survived  the  father,  and  died  without  issue,  and  so  the 
younger  brother  might  by  possibilitie  have  beene  heire  to  him, 
the  warrantie  is  lineall. 

And  here  it  is  to  be  noted,  that  the  warrantie  of  the  eldest 
sonne  descended  before  the  right  descended ;  whereof  more  shall 
be  said  hereafter,  Sect.  741 ;  and  the  opinion  of  Littleton  in  this 
case  is  holden  for  law  against  the  opinions  in  35  L.  3.  Gar.  73. 

g  J1  3  ig_  "  But  in  this  case  if  the  younger  somie  releaseth  with  warra,ntie, 

38  E.  3.  21.  &c."  This  warrantie  in  this  case  is  collaterall  to  the  eldest  sonne, 
46  E.^3.  26.  a^Q^  tQ  the  issues  of  his  bodie  ;  but  if  the  eldest  sonne  dieth  with- 
^2  RoU.  Abr.  "  out  issue  of  his  bodie,  then  the  warrantie  is  lineall  to  the  issues  of 
733.)  "  '  the  bodie  of  the  youngest :  and  so  the  warrantie  that  was  col- 
laterall to  some  persons,  may  become  lineall  to  others. 

Sect. 

*  fits  not  in  L.  and  M.  or  Roh.  J  fits  not  in  L.  and  M.  or  Roh. 

•j"  fits  not  in  L.  and  M.  or  Roh. 


1 , 3.  C.  13.  S.  708.        Of  Warrantie.         [372.  a.  372.  b. 


Pr-] 


Sect.  708. 


A  LSO,  if  tenant  in  taile  hath  issue  three  sonnes,  and  discontinue  the 
tayle  in  fee^  and  the  middle  son  release  by  his  deed  to  the  discontinuee, 
and  bind  him  and  his  heires  to  warrantie,  ^c.  and  after  the  tenant  in 
taile  diethy  and  the  middle  son  dieth  without  issue,  now  the  eldest  sonne 
is  barred  to  have  any  recoverie  by  writ  o/formedon,  because  the  warrantie 
of  the  middle  brother  is  collaterall  to  him,  inasmuch  as  hee  can  by  no 
meanes  convey  to  him  by  force  of  the  tayle  any  discent  by  the  middle, 
and  therefore  this  is  a  collaterall  warrantie.  But  in  this  case  if  the 
eldest  Sonne  die  without  issue,  now  the  youngest  brother  may  well  have 
a  ivrit  of  formedon  in  the  discender,  and  shall  recover  the  same  landf 
because  the  ivarrantie  of  the  middle  is  lineall  to  the  youngest  son,  for 
that  it  might  bee  that  by  j)ossibilitie  the  middle  might  bee  seised  by  force 
of  the  taile  after  the  death  of  his  eldest  brother,  and  then  the  youngest 
brother  might  convey  his  title  of  discent  by  the  middle  brother. 

HEREBY  it  also  appeareth,  that  a  warrantie  that  is  colla-  (Dr.  and  Stud. 
terall  in  respect  of  some  persons,  may  afterwards  become  g  ^'  g] 
lineall  in  respect  of  others.     Whereupon  it  followeth,  [*]  that  Gar.  lOl. 
a  collaterall  warrantie  doth  not  give  a  right,  but  bindeth  only  a  ^^H^^^^^.-^^'*- 
right  so  long  as  the  same  continueth ;  but  if  the  collaterall  war-  ^^.j^'  g^. '  * 
rantie  be  determined,  removed,  or  defeated,  the  right  is  revived.  7  h.  5.  6.  tit. 
r  n  And  vet  in  an  assise  the  plaintiffe  hath  made  his  title  by  a  Ass.  359. 
collaterall  warrantie.  Droit  29. 

19H.  6.  59.    21H.  7.  40.     5  H.  7.  29.  3  H.  7.  9.  b.  [/]  Ib'Ass.  p.  10. 

27  Ass.  74.    29  Ass.  50.     43  Ass.  8.     14  H.  4.  13.     19  H.  6.  60. 

^^  Barred,'*  is  a  word  common  as  well  to  the  English  as  to  the  (Doct.  Plac.  54.) 
French,  of  which  commeth  the  nowne,  a  bar,  barra.    It  signifieth 
legally  a  destruction  for  ever,  or  taking  away  for  a  time  of  the 
action  of  him  that  right  hath.    And  larra  is  an  Italian  word,  and 
signifieth  barre,  as  we  use  it;  and  is  called  a  plea  in  barre, 
when  such  a  barre  is  pleaded.  Here  Litdeton  putteth  an  example  (Dr.  and  Stud, 
of  a  barre  of  an  estate  taile  by  a  collateral  warranty.     It  is  to  be  56.  a.) 
observed,  that  in  some  cases  an  estate  taile  may  be  barred  by 
some  acts  of  parliament  made  since  Littleton  wrote;  and  in  some 
cases  an  estate  taile  cannot  be  barred,  which  might  when  Lit- 
tleton wrote  have  been  barred.     For  example,  if  tenant  in  tayle  4  H.  7.  c.  24.  & 
levie  a  fine  with  proclamations  according  to  the  statute,  this  is  ^}^^^^-  \^^- 
a  barre  to  the  estate  taile,  but  not  to  him  in  reversion  or  re-  ^ 
mainder,  if  hee  maketh  his  claime,  or  pursue  his  action  within 
five  yeares  after  the  state  taile  spent. 

[i]  If  a  gift  be  made  to  the  eldest  sonne,  and  to  the  heires  of  [i]  Dalison, 
his  bodie,  the  remainder  to  the  father  and  to  the  heires  of  his  "^^^^  ^ib.  3!' 
bodie,  the  father  dieth,  the  eldest  son  levieth  a  fine  with  pro-  foi.  84.  lo' ca'so 

clamations,  and  dieth  without  issue;  this  shall  barre  de  Fines. 
fSVS.'l  B®*  the  second  sonne,  for  the  remainder  descended  j^J^^^^jolb.'' 
1_    b.     J  to  the  eldest.  ^  9  Rep.  104. 

If  tenant  in  taile  be  disseised,  or  have  a  right  of  piowd.  374.  a. 
action,  and  the  tenant  of  the  land  levie  a  fine  with  proclama-  375.  a.^_^  ^^^ 
tions,  and  five  years  passe,  the  right  of  an  estate  taile  is  barred.  ^^^^  ^g  * 

If  (Dyer,  3.  b.  133.) 

Vol.  II.— 44 


372.  b.  ]  Of  Warrantie.       L.  3.  C.  13,  Sect.  708. 

[h]  26  H.  8.  [b]  If  tenant  in  taile  in  possession,  or  that  hath  a  right  of 

^'^P-  1^-  ^  entrie,  bee  attainted  of  high-treason,  the  estate  taile  is  barred, 
5  E.  6.  c.*^ll! "  '  ^dlI  the  land  is  forfeited  to  the  king ;  and  none  of  these  were 
Stauuf.  PI.  barred  when  Littleton  wrote.     A  lineall  warrantie  and  assets  wa^ 

Coron.  18.  ^  barre  to  the  estate  taile  when  Littleton  wrote;  whereof  more 

shall  be  said  hereafter. 
[c]  12  E.  4.  9.  [c]  A  common  recoverie  with  a  voucher  over,  and  a  judgment 

Taltarum's  case,  ^q  recover  in  value,  was  a  barre  of  the  estate  taile  when  Littleton 
Sect  69*0  ^"^^^^  wrote.  [(/]  And  of  common  recoveries  there  bee  two  sorts,  viz. 
Vid.  Lib.  3.  f(jl.  One  with  a  single  voucher,  and  another  with  a  double  voucher, 
5.  Cuppledick's  and  that  is  more  common  and  more  safe;  there  maybe  more 
tT\()6  "  *     '     vouchers  over. 

Lib.  1  fol.  62.     Capel's  case.     Lib.  2.  fol.  16.  52.  74.  77.    Lib.  6.  fol.  41,  42. 
Lib.  10.  fol.  37.     Marie  Portington's  case.     (Ante  335.  a.) 

[e]  38  H.  8.  [e]  If  the  king  had  made  a  gift  in  taile,  and  the  donee  had 

Taile,  Br.  41.  guflered  a  common  recoverie,  this  should  have  barred  the  estate 
555.  29  H.'s.  taile  in  Littleton's  time,  but  not  the  reversion  or  remainder  in  the 
Dier,  52.  king.     And  so  if  such  a  donee  had  levied  a  fine  with  proclama- 

[/]  34  H.  8,  tions  after  the  statute  of  4  H.  7,  this  had  barred  the  estate  taile, 
cap.  20,  although  the  reversion  was  in  the  king  (1).  [y']  But  since  Lit- 

tleton wrote,  a  common  recoverie  had  against  tenant  in  taile  of 
the  king's  gift,  or  such  a  fine  levied  by  him,  the  reversion  con- 
tinuing in  the  crowne,  is  no  barre  to  the  estate  taile  by  the 
statute  of  34  H.  8.  (2).  And  where  the  words  of  the  statute  be 
(whereof  the  reversion  or  remainder  at  the  time  of  such  recoverie 
had  shall  be  in  the  king)  these  ten  things  are  to  be  observed 
upon  the  construction  of  that  act  (3). 

First, 

(1)  29  II.  8.  D^.  82.  accord,  tail  barred,  but  not  discontinued,  because  the 
32  H.  8.  cap.  36.  was  not  then  made.  Note  also,  that  32  11.  8.  cap.  36.  excepts 
reversion  is  in  the  king :  so  note  the  issue  is  barred  by  4  H.  7.  Hob.  382. /or 
tenant  in  tail  by  gift  of  the  king.     Lord  Nott.  MSS. — [Note  322.] 

(2)  Upon  this  act  see  Mr.  Cruise's  Essay  on  Recoveries,  2d  ed.  255.  and 
5  Digest,  ch.  xiii.  §  9. 

(3)  Nota,  34  H.  8.  is  not  of  force  in  Ireland,  therefore  the  knowledge  of  the 
common  laio  in  these  points  is  necessary  there. — B.  being  tenant  in  tail  by  gift  of 
king  II.  8.  of  the^ manner  of  T .  an.  14  Eliz.  contracted  with  A.  to  convey  it  to  him 
and  his  heirs  in  consider  at  io7i  of  a  sum  of  money,  and  the  manner  of  assurance 
was  this:  queen  Eliz.  in  May  14  Eliz.  grants  her  reversion  to  C.  and  D.  and 
their  heirs;  June  14  Eliz.  B.  suffers  a  recovery  to  the  iise  of  C.  a7id  D.  and  their 
heirs;  and  in  the  same  terme  B.  and  A.  levy  a  fine  ofT.  to  C.  and  D.  which  they 
grant,  and  render  to  A. ;  and  afterwards,  in  the  same  term,  reconvey  the  rever- 
sion by  fine,  &c.  to  queen  Eliz.  And  now  whether  this  estate  to  A.  was  a  gift  in 
tail  ex  provisione  from  the  queen,  within  the  statute  of  Si:  H.  8.  c.  20.  was  the 
question  between  E.  heir  of  the  body  of  K.  and  F.  who  claimed  by  the  fine  levied 
by  the  father  of  the  said  E.  whose  daughter  he  had  married ;  and  it  was  held  by 
Berkeley  that  it  was  not,  1st,  because  the  grant  of  the  reversion  to  C.  expresses 
no  intent  of  the  queen  to  create  an  estate  tail  to  A. :  2d,  when  the  estate  tail  of  B. 
icas  docked  by  the  recovery,  and  ujion  the  fine  levied  C.  rendered  the  tail  to  A. 
he  might  have  rendered  the  fee  simple  if  he  had  loilled ;  and  he  was  the  donor  of 
the  estate  tail,  not  the  queen,  except  of  the  reversion  afterwards  rcconveyed : 
3(Z,  this  reversion  reconveyed  was  not  in  the  queen  her  original  reversion,  but  a 
new  reversion  expectant  upon  the  tail  of  A.  {^for  the  former  tail  was  docked} 
wherefore  A.  cannot  bar  tlie  reversion  in  the  queen,  but  he  may  bar  his  own  issue 
notwithstanding  34  //.  8. :  4;7t,  because  although  gift  in  tail  by  a  suhjectmay  be 
a  provision  of  the  king  within  the  statute,  nevertheless  the  intent  should  ap2iear, 

which 


L.  3.  C.  13.  Sect.  708.      Of  Warrantie.  [372.  b. 

First,  that  the  estate  tail  must  bee  created  by  a  king,  and 
not  by  any  subject,  albeit  the  king  be  his  heire  to  the  reversion; 
for  the  preamble  speakes  of  gifts  made  to  subjects,  and  none 
can  have  subjects  but  the  king.     And  also  in  the  preamble  it  is 
said  (for  service  done  to  the  kings  of  the  realme),  and  the  body 
of  the  act  referreth  to  the  preamble.     [^]  And  therefore  if  the  p?]  Tnn.  23  Eliz. 
duke  of  Lancaster  had  made  a  gift  in   taile,  and  the  reversion  ^J^ton'7e-^ 
descended  to  the  king,  yet  was  not  that  estate  taile  restrained  solved  in  the 
by  that  statute ;  and  so  of  the  like.  ^Tl**!-  TV^^^' 

Secondly,  if  the  king  grant  orer  the  reversion,  then  a  recoverie  J'^g  (/"^yi^g. 
suffered  will  barre  the  state  taile,  because  the  king  had  no  rever-  ^jan's  case, 
sion  at  the  time  of  the  recoverie. 

Thirdly,  if  the  king  make  a  gift  in  taile,  the  remainder  in  taile,  Lib.  8.  fol.  77, 
or  grant  the  reversion  in  taile,  keeping  the  reversion  in  the  gt;^JJrdKse. 
crowne,  a  recoverie  against  tenant  in  taile  in  possession  shall  ^2  Roll.  394.) 

neither 


ivhich  is  not  the  case  here.  Hales  made  two  questions.  I.  What  shall  he  said  a 
provision  hy  the  king  icithin  this  statute,  and  this  is  question  of  law.  II.  Whe- 
ther this  shall  he  said  to  he  such  a  provision,  which  is  matter  of  fact.  To  the 
first  it  seems,  that  if  the  queen  he  merely  instrumental  in  procuring  an  estate 
tail  to  he  settled,  hut  that  the  estate  itself  does  not  proceed  either  from  the  charge, 
or  from  the  hounty  of  the  crown  as  a  reward  for  service,  it  is  no  provision  within 
this  statute  ;  and  therefore  it  is  to  he  seen,  if  in  this  case  the  entail  was  upon  con- 
tract hetween  suhject  and  suhject,  and  if  the  queen  were  merely  instrumental  to 
perfect  the  conveyance  and  save  her  own  reversion,  which  is  the  second  question, 
and  a  question  of  fact.  To  the  second,  that  this  is  not  such  a  provision,  there  are 
these  presumptions :  \st.  Nothing  appears  of  record  that  such  provision  was  in- 
tended, which  hy  Coke  is  here  held  to  he  necessary  (hut  Hales  douhted  hereof) 
2d,  No  land,  money,  or  other  consideration,  moved  the  queen  to  procure  B.  to 
grant  this  estate  tad  to  A.  Sd,  It  does  not  appear  that  the  queen  took  notice  of 
any  service  done  hy  A.  or  of  any  favour  intended  hy  her  to  him.  4:th,  If  the 
queen  had  intended  a  provision  within  the  statute,  she  might  have  caused  C.  to 
convey  the  fee  simple  first  to  herself,  and  then  have  granted  to  A.  in  tail.  5th,  If 
it  teas  intended  that  A.  should  have  an  entail,  ichich  should  not  he  aprovision 
icithin  the  statute,  no  one  can  contrive  any  other  way  than  this  to  effect  it.  6th,  It 
appears  that  A.  ivas  to  purchase,  and  that  the  queen  should  not  he  prejudieed, 
nor  any  other  jyerson  which  is  effected. — Nota,  At  the  common  law,  if  the  king 
grant  lands  in  fee  simple  conditional,  it  was  douhted  if  donee  post  prolem  sus- 
citatem  might  have  aliened  to  har  his  issue,  lliley,  438.  supra  19.  h.  hut^  clearly 
not  to  har possihility  of  reverter  in  the  king  ;  no,  not  though  the  alienation  were 
with  warranty  collateral,  unless  assets  descended  to  the  king.  Ante,  19.  h.  and 
370.  in  margine.  Sed  unde  alienation  without  warranty  or  assets  hars  suhject 
donor,  4  H  6.  Rot.  Pari.  n.  51.  Commons  petition  that  feoffees  who  buy  lands 
of  the  king,  tenant  in  taile  may  enjoy  them  against  the  king.  Resp.  le  roy 
s'avisera. — Note  also  after  Westm.  2.  and  hefore  34  //.  8.  recovery  or  fine 
barred  the  tail  of  gift  hy  the  king,  not  the  reversion  to  the  king;  so  that  hy  the 
wisdom  of  the  common  laic,  where  the  king  raised  the  family,  a  kind  of  perpe- 
tuity was  intended;  for  every  man  was  discouraged  to  purchase  from  the  donee, 
for  no  act  of  his  could  har  the  king's  reversion  or  possihility  of  reverter,  ichich 
was  a  good  way  to  preserve  the  memory  of  the  king's  hounty.  When  this  would 
not  do,  upon  the  dissolution  of  monasteries,  the  crown  having  much  land  to  he- 
stow,  hegan  now  to  jyrovide  hy  Zi  H.  8.  that  no  alienation  shoidd  har  the  entail; 
for  there  needed  no  law  for  the  reversion,  and  no  other  way  couki preserve  the 
memory,  &c. :  and  yet  this  is  often  eluded  hy  a  temporary  grant  of  the  rever- 
sion hy  the  king,  and  a  reconveyance,  &c. — Lord  Nott.  MSS. — [Note  323.] 


Lib.  2.  fol.  15, 
16.  Wiseman's 
case.  liib.  2.  fol. 
j2.  CUoluileye's 
case. 

(Mo.  115.  195. 
2Kep.l5.b. 
1  Cro.  430.) 


Lib,  2.  foL  16. 

AVisoman's  case. 


372.  b.  373.  a.]      Of  Warrantic.       L.  3.  C.  13.  Sect.  708. 

neither  barrc  the  estate  tailc  in  possession  l)y  the  exprcssp  pur- 
view of  the  statute,  nor  by  eonse(jueuce  the  state  in  remainder 
or  reversion  ;  for  that  the  reversion  or  reujainder  eannot  be 
barred,  but  where  the  estate  tail  in  possession  is  barred. 

Fourthly,  if  a  subject  make  a  gift  in  taile,  the  remainder  to 
the  king  in  fee,  albeit  the  words  of  the  statute  be,  (whereof  the 
reversion  or  remainder  of  the  same,  i^c.)  yet  seeing  the  estate  in 
tailc  was  not  created  by  a  king,  as  hath  bcene  said,  the  estate 
taile  may  bee  barred  by  a  couirann  recovcric. 

Fifthly,  if  Prince  ILun'e,  soiine  of  ILnric  the  Seventh,  had 
made  a  gift  in  tailc,  the  remainder  to  Jlcnrie  the  Seventh  in  fee, 
which  remainder  by  the  death  of  Ifenrie  the  Seventh  had  de- 
scended to  Ilcnrie  the  Eighth,  so  as  he  had  the  remainder  by 
discent ;  yet  might  tenant  in  taile,  for  the  cause  aforesaid,  barre 
the  estate  taile  by  a  common  reccn'crie. 

Sixthly,  the  word  (remainder)  in  the  statute  is  novainc  word  ; 
for  the  words  of  the  preamble  be,  the  king  hath  given  or  granted, 
or  otherwise  provided  to  his  servants  and  subjects.  The  word 
(reversion)  iu  the  body  of  the  act  hath  reference  to  these  words 
(given  or  granted) ;  and  (remainder)  hath  reference  to  these 
words  (otherwise  provided).  As  if  the  king  in  consideration  of 
money,  or  of  assurance  of  land,  or  for  other  consideration  by  way 
of  provision,  procure  a  subject  by  deed  indented  and  inrolled,  to 
make  a  gift  in  taile  to  one  of  his  servants  and  subjects  for  recom- 
pence  of  service,  or  other  consideration,  the  remainder  to  tho 
king  in  fee,  and  all  this  appeare  of  record  ;  this  is  a  good  provi- 
sion within  the  statute,  and  the  tenant  in  taile  cannot  by  a  com- 
mon recovcric  barre  the  estate  taile.  So  it  is,  if  the  remainder 
bee  limited  to  the  king  in  tailc  ;  but  if  the  remainder  bee  limited 
to  the  king  for  ycarcs,  or  for  life,  that  is  no  such  remainder  as  it 
is  intended  by  the  statute,  because  it  is  of  no  remainder  of  con- 
tinuance, as  it  ought  to  be,  as  it  appeareth  by  the  preamble ; 
and  it  ought  to  have  some  affinitic  with  a  reversion,  wherewith 
it  is  joyned. 

Seventhly,  where  a  common  recovcric  cannot  barrc  the  state 
tail  by  force  of  the  said  statute,  there  a  fine  levied  in  fee  in 
tailc,  for  lives,  or  yearcs,  with  proclamations  according  to  the 
statutes,  shall  not  barre  the  state  taile,  or  the  issue  in 
taile,  where  tho  reversion  or  B@^  remainder  is  in  the  ["373.1 
king,  as  is  aforesaid,  by  reason  of  these  words  in  the  L  '•'•  J 
said  act  (the  said  recovery,  or  any  other  thing  or  things 
hereafter  to  be  had,  done,  or  suffered  by  or  against  any  such 
tenant  in  tailc  to  the  contrary  notwithstanding),  which  words 
include  a  fine  levied  by  such  donee,  and  restraiucth   the  same. 

Eighthly,  but  where  a  common  recovery  shall  barre  the 
estate  taile,  notwithstanding  that  statute,  there  a  fine  with 
proclamations  shall  barre  the  same  also. 

Ninthly,  where  the  said  latter  words  of  the  statute  be  (had, 
done,  or  suifered  by  or  against  any  such  tenant  in  taile,)  the 
sense  and  construction  is,  where  tenant  in  taile  is  partie  or 
privie  to  the  act,  be  it  by  doing  or  suffering  that  which  should 
workc  the  barrc,  and  not  by  meerc  permission,  he  being  a 
stranger  to  the  act(l). 

As 


So  resolved 
Pasch.  31  Eliz. 
Rot.  1645,  in 
Notley's  case 
m  Communi 
Banco. 

(8  Rep.  77.) 


(3  Cro.  430. 
Cro.  Eliz.  595. 
Sid.  166. 
4  Loon.  40. 
Moor,  467.) 


(1)  11  Car.  Cro.  obiter  in  ]S'i/at's  case,  tenant  in  tail,  reversion  to  the  Jcintj, 
is  disseised,  entri/  to  the  issue  is  barred  :  vhich  perhaps  is  so  here,  because  in 
both  cases  the  taile  is  not  barred. — Lord  Nott.  31SS. — [Xote  ^124. J 


L.  3.  C.  13.  Sect.  709.      Of  Warrantie.  [373.  a. 

As  if  tenant  in  tayle  of  the  gift  of  the  king,  the  reversion  to  So  hoiden  Trin. 
the  king  expectant,  is  disseisedVand  the  disseisor  levie  a  fine,  and  \l^/'l^^^^^- 
five  yeares  passe,  this  shall  barre  the  estate  taile  (2) ;  and  so  if  a  Stratford  &  Do- 
collaterall  ancestour  of  the  donee  release   with   warrantie,  and  ver  in  Communi 
the  donee  suffer  the  warrantie  to  descend   without  any  entry  ^j^^^'^gg, 
made  in  the  life  of  the  ancestour,  this  shall  binde  the  tenant  in  ^  ^'jj  '^^^^ 
tayle,  because  he  is  not  party  or  privie  to  any  act,  either  done  or  773.) 
suffered  by  or  against  him. 

Tenthly,  albeit  the  preamble  of  the  statute  extend  onely  to 
gifts  in  taile,  made  by  the  kings  of  P^ugland  before  the  act  (viz. 
hath  given  and  granted,  etc.)  and  the  budy  of  the  act  referrethto 
the  preamble  (viz.  that  no  such  feigned  recovery  hereafter  to 
be  had  against  such  tenant  in  taile),  so  as  this  word  (such)  may 
seeme  to  couple  the  body  and  the  preamble  together ;  yet  in 
this  case  (such)  shall  be  taken  for  such  in  equall  mischiefe,  or 
in  like  case ;  and  by  divers  parts  of  the  act  it  appeareth  that  the 
makers  of  the  act  intended  to  extend  it  to  future  gifts ;  and  so 
is  the  law  taken  at  this  day  without  question. 

A  recovery  in  a  writ  of  right  against  tenant  in  taile  without  a  33  E.  3._  Judge- 
voucher,  is  no  barre  of  any  gift  in  taile.  ™^  '^  ^/ 

If  tenant  in  taile  the  remainder  over  in  fee  cesse,  and  the  lord  ^j  g.  6.  5'. 
recover  in  a  cessavit,  this  shall  not  barre  the  estate  taile,  for  the  14  E.  4.  o.b. 
issue  shall  recover  in  a/arinedon;  neither  were  either  of  these  y>  E-  4.  8.^^  ^^ 
barres  when  Littleton  wrote.    But  let  us  now  heare  Littleton.       pi/c'om.  237. 

28  E.  3.  95.     r.  N.  B.  28. 1. 


Sect.  709. 

A  LSO,  if  tenant  in  taile  discontinue  the  taile,  and  hath  issue  and  dieth, 
and  the  uncle  of  the  issue  release  to  the  discontinuee  ivith  warrantie, 
^c.  and  dieth  without  issue,  this  is  a  collateral  warranty  to  the  issue  in 
\ayh,  because  the  ivarranty  descendeth  upon  the  issue,  that  cannot  con- 
vey himselfe  to  the  entayle  by  meancs  of  his  uncle. 

THE 


(2)  Cro.  Car.  430.  Jones  cited  the  case  according  to  the  report  in  this 
place ;  but  it  seems  he  was  misled  by  this  book.  See  the  note  immediately 
following. — It  seems  to  some  that  the  case  of  Stratford  and  Dover  above  quoted 
is  not  law;  for  in2  Rep.  11.  Marjd.  Coll.  case,  it  is  adjudged,  that  the  fine  does 
not  bar  the  college,  not  being  parties,  because  the  13  Eliz.  makes  void  all  acts 
tchich  it  suffers,  and  such  sufferance  extends  to  the  act  in  which  they  are  not  par- 
ties, by  sir  Orl.  B. — And  sir  F.  Moore,  467.  reports  the  same  case:  and  there 
by  Walmsley  it  is  said,  that  this  issue  is  ordy  bound  in  the  time  the  fine  islevied, 
but  no  other  issue,  and  this  by  34  E.  8.;  hence  it  .seems,  that  sir  F.  Moore  or 
lord  Coke  have  misreported  the  case,  for  they  are  contrary  to  each  other.  Note, 
Mr.  Palmer  told  Hen.  Finch,  aftericards  lord  Xottingham  and  chancellor,  that 
he  attended  Walter,  chirf  baron  upon  a  reference,  and  that  Walter  denied  the 
above  case,  and  said,  that  the  roll  uas  contra,  and  thefulgmcnt  there  contra  to 
this  report,  and  that  he  and  Palmer  iccnt  to  the  house  of  lord  Coke,  then  living, 
and  showed  him  the  roll  contra  to  his  report  in  this  place,  and  that  he  acknow- 
ledged it,  and  said,  that  he  trusted  to  serjeant  Bridgmans  report :  whence  it 
appears,  that  sir  F.  Moore's  report  is  the  better,  arid  there  he  reports  it  to  have 
been,  39  Eliz.  Ro.  1914.— Lord  Nott.  MSS.— [Note  325.] 


373.  a.  373.  b.]      Of  Warrantie.      L.  3.  C.  13.  Sect.  709. 

rPl,  Com.  fol.  ^rHE  reason  wherefore  the  warrantie  of  the  uncle  having  no 
307.  a.  in  Sha-  i  right  to  the  land  entailed  shall  barre  the  issue  in  tayle  is,  for 
2  if  n^Al"'^^*'*  that  the  law  presumeth  that  the  uncle  would  not  unnaturally  dis- 
745°)  '  ^'  herit  his  lawfull  heire,  being  of  his  owne  bloud,  of  that  right 
(Post.  374.  b.)  which  the  uncle  never  had,  but  came  to  the  heire  by  another 
(3  Rep.  59.)  meane,  unlesse  hee  would  leave  him  greater  advancement.  Nemo 
prsesumitur  alienam posteritatem  sitcepratidisse.  And  in thisease 
the  law  will  admit  no  proofe  against  that  which  the  law  pre- 
(Ante  6.  b.)         sumeth.     And  so  it  is  of  all  other  collaterall  warranties;  for  no 

man  is  presumed  to  doe  any  thing  against  nature. 
[/.•]  11  n.  4.  55.        [^-]  And  the  like  holdeth  in  some  other  cases;  as  if  a  rent  be 
10  Eliz.  Dier,      behinde  for  twentie  yeares,  and  the  lord  make  an  acquittance  for 
-''^-  the  last  that  is  due ;  all  the  rest  are  presumed  to  be  paid ;  and 

[?]  7  H.  4.  9.       the  law  will  admit  no  proofe  against  this  presumption  (3).    [I]  So 
if  a  man  be  within  the  foure  seas,  and  his  wife  hath  a  childe,  the 
law  presumeth  that  it  is  the  childe  of  the  husband;  and  against 
this  presumption  the  law  will  admit  no  proofe  (4). 
[m]  3  E.  3.  [wi]  If  a  man  that  is  innocent  be  accused  of  felony, 

Corone,  Staunf.  andforfearfliethfromthesame, 0^7=  albeit hejudicially  ['373."] 
acquitteth  himsclfe  of  the  felonie,  yet  if  it  be  found  that  L  b-  J 
he  fled  for  the  felonie,  he  shall,  notwithstanding  his 
innocence,  forfeit  all  his  goods  and  chattels,  debts  and  duties ; 
for  as  to  the  forfeiture  of  them,  the  law  will  admit  no  proofe 
against  the  presumption  in  law  grounded  upon  his  flight :  and  so 
Bracton,  lib.  1.  in  many  other  cases.  But  yet  the  generall  rule  is,  Quod  staliiur 
cap.  9.  prcesimijjtioni  donee  prohetur  in  contrarium ;  but,  as  you  see,  it 

hath  many  exceptions. 

[«]  Rot.  Par-  [Ji]  It  hath  beene  attempted  in  parliament,  that  a  statute 

liament,  50  E.  3.  might  be  made,  that  no  man  should  be  barred  by  a  warrantie 

num.  77.  collat«rall,  but  where  assets  descend  from  the  same  ancestor ; 

but  it  never  tooke  efi'ect  (1),  for  that  it  should  weaken  common 

assurances  (2). 

Sect. 

(3)  This  is  to  be  understood  of  an  acquittance  under  hand  and  seal,  which 
is  an  estoppel ;  for  if  it  be  not  under  seal,  the  law  will  admit  of  proof  to  the 
contrary :  but  an  avowry  for  the  last  day's  rent  is  no  discharge  for  the  former; 
for  by  the  avowry  the  avowant  says  so  much  is  due,  but  discharges  nothing, 
no  other  rent  being  mentioned  in  the  avowry,  but  that  for  which  he  acknow- 
ledges the  taking  "he  goods.  See  1  Sid.  44.  1  Lev.  43.  1  Saund.  285,  286. 
Lutw.  1173.     Note  to  the  11th  edition. — [Note  326.] 

(4)  But  see  ant.  244.  a,  note  2. 

(1)  However,  it  hath  been  efiected  in  our  days  ;  for  by  4  Ann.  cap.  16.  sect. 
21.  all  warranties  since  the  first  day  of  Trinity  Term,  anno  Dom.  1705,  by  any 
tenant  for  life,  of  any  lands,  tenements,  or  hereditaments,  coming  or  descend- 
inw  to  any  person  in  reversion  or  remainder,  are  void  and  of  no  eflect ;  and  all 
coUateral  warranties  made  since  then  of  any  lands,  tenements,  or  hereditaments, 
by  any  ancestor  who  had  no  estate  of  inheritance  in  possession,  the  same  is  void 
against  the  heir.  Note  to  the  11th  edition. — [Note  327.] 
°(2)  The  reader  will  recollect,  that  previously  to  the  statute  de  don  is  all 
estates  were  held  either  in  fee  simple,  iu  fee  simple  conditional,  for  life,  or  for 
years;  and  that  estates  tail,  in  the  light  in  which  we  now  consider  them,  had 
not  then  an  existence.  If  a  person  seised  in  fee  simple  aliened  his  estate,  the 
alienation  was  certainly  binding  upon  both  his  lineal  and  his  collateral  heirs ; 
his  warranty  therefore  had  efi'ect  so  far  as  it  entitled  the  alienee  to  vouch  the 
heir  of  the  warrantor,  and,  in  case  of  eviction,  to  claim  a  recompense  from 

him, 


L.  3.  C.  13.  Sect.  710.  Of  AVarrantie.  [373.  b. 


Sect.  710. 

A  LSO,  if  the  tenant  in  tayle  hath  issue  two  daughters  and  dietJi,  and 

the  elder  entreth  into  the  whole,  and  thereof  maketh  a  feoffment  in 

fee  ivith  warrantie,  ^c.  and  after  the  elder  daughter  dieth  without  issue  ; 

in 


him,  if  any  real  assets  descended  upon  liim  from  the  ancestor  :  but  with  respect 
to  the  repelling  or  rebutting  of  the  claim  of  the  heir  to  the  estate  itself,  as 
the  alienations  of  tenant  in  fee  simple  bound  the  heirs  as  effectually  without 
the  warranty  as  with  it,  the  warranty,  in  that  respect,  could  have  no  operation. 
As  to  the  warranties  of  persons  seised  of  estates  held  in/ee  siviple  conditional, 
it  has  been  observed  before,  p.  326.  b.  note  1.  that  the  condition  from  which 
that  estate  took  its  appellation  did  not  suspend  the  fee  from  vesting  in  the  do- 
nee immediately  by  the  gift;  and  therefore  if  he  aliened  before  he  had  issue, 
it  not  only  was  no  forfeiture,  but  if  afterwards  he  had  issue,  it  was  a  bar  to 
them.  Hence  the  warranty  of  a  tenant  in  fee  simple  conditional  had  the  same 
effect  with  respect  to  his  issue,  as  the  warranty  of  tenant  in  fee  simple  absolute 
had, upon  those  who  claimed  from  him  ;  that  is,  with  assets,  it  entitled  the  war- 
rantee to  vouch  the  issue  as  heirs  at  law  of  the  ancestor;  but  in  other  respects 
it  had  no  operation,  as  the  issue  was  bound  by  the  alienation  of  the  ancestor, 
as  effectually  without  warranty  as  with  it.  With  respect  to  the  donor  or  rever- 
sioner, the  alienations  of  tenant  in  fee  simple  conditional  could  not  be  binding 
on  him  without  assets,  because  he  claimed  to  be  in  by  title  paramount. 

As  to  the  warranties  of  tenant /or  life  or  for  years  :  in  most  cases  they  must 
have  been  void,  as  commencing  by  disseisin.  In  those  cases  where  they  were 
not  void  upon  that  account,  it  is  to  be  observed  that  before  the  statute  of  uses 
an  estate  of  freehold  could  not  be  treated  without  livery  of  seisin  ;  and  that  as 
the  livery  of  seisin  of  tenant  for  life  or  for  years  was  a  forfeiture  of  the  estate, 
the  reversion  or  remainder-man  might  enter  immediately  for  the  forfeiture ; 
but  if  he  did  not  enter  during  the  life  of  the  person  aliening,  the  warranty 
estopped  him  from  entering  afterwards.  The  reader  will  recollect,  that  if  a  di^^- 
seisor,  abator,  or  intruder,  died  in  the  possession  of  the  estate,  his  heirs  so  far 
acquired  a  presumptive  title  to  the  estate,  that  the  disseisee  could  no  longer 
restore  his  possession  by  entry,  but  was  reduced  to  his  action.  By  analogy  to 
this  reasoning,  and  a  rational  extension  of  the  principles  on  which  it  was  founded, 
the  law  supposed  that  the  remainder-man  or  reversioner  would  have  entered 
for  the  forfeiture  of  the  tenant  for  life  or  years,  if  an  equivalent  were  not  given 
him  :  it  was  therefore  presumed,  that  if  he  did  not  enter  during  the  life  of 
such  particular  tenant,  he  had  received  from  him  an  equivalent;  and  this  pre- 
sumption being  admitted,  he  could  not  afterwards,  with  any  colour  of  justice, 
be  allowed  to  claim  the  estate  itself. 

Such  were  the  effects  and  operations  of  warranty  at  the  common  law. 
The  first  material  alteration  in  it  was  by  the  statute  of  Gloucester,  6  E.  1. 
ch.  3.  by  which  it  was  enacted,  that  the  warranty  of  the  father,  tenant  by  the 
courtesy,  either  in  the  life  of  his  wife  or  afterwards,  should  not  be  a  bar  to  the 
heir  without  assets.  The  next  statute  which  made  any  material  alteration  upon 
the  effect  and  operation  of  warrant}^,  was  the  statute  de  dovis.  An  attempt  has 
been  made  in  note  1,  page  326.  b.  and  notes  1  and  2  to  pages  327.  a.  to  explain 
in  what  manner,  and  by  what  construction  of  law,  estates  tail  derived  their 
origin  from  that  statute.     It  is  obvious,  that  if  the  warranty  of  tenant  in  tail, 

without 


373.  b.]  Of  Warrantie.     L.  3.  C.  13.  Sect.  710. 

in  this  case  the  younger  daughter  is  barred  as  to  the  one  moietie,  and  as  to 
the  other  moietie  shee  is  not  haired.  For  as  to  the  moity  which  helongeth 
to  the  younger  daughter,  shee  is  barred,  because  as  to  this  *  part  shee  cannot 

convey 
*part — moitie  loTiich  helongeth  to  her,  L.  and  M.  and  Roh. 

without  assets,  had  been  permitted  to  be  a  bar  of  the  estate  tail,  it  would  have 
been  in  the  power  of  every  tenant  in  tail  to  have  evaded  that  statute,  and 
barred  his  issue.  By  a  kind  of  analogy,  therefore,  to  what  the  legislature  had 
done  in  passing  the  stat.  of  Gloucester,  the  judges  in  their  construction  of  the 
statute  de  donis,  held,  that  the  warranty  of  tenant  in  tail,  without  assets,  should 
not  bind  his  issue ;  but  by  the  same  analogy,  and  to  prevent  the  circuity  which 
would  arise  if  the  issue  had  been  permitted  to  recover  the  estate  from  the  alienee, 
and  the  alienee  to  recover  the  assets  from  the  issue,  they  held  the  issue  bound 
by  warranty  with  assets. — With  respect  to  those  in  remainder  or  reversion — 
it  is  to  be  observed,  that  the  statute  de  donis  extends  only  to  the  alienations 
of  tenants  in  tail ;  the  alienations,  therefore,  of  tenants  for  life  with  warranty, 
remained  as  they  did  at  the  common  law,  and  therefore  bound  all  upon  whom 
the  warranty  descended,  either  with  or  without  assets.  Neither  did  the  statute 
de  donis  restrain  the  alienations  of  tenant  in  tail,  except  so  far  as  they  pre- 
vented the  land  descending  upon  the  issue  at  his  death,  or  reverting  to  the 
donor  for  want  of  issue  in  tail.  There  is  nothing  in  it  which,  either  directly 
or  indirectly,  restrains  the  tenant  in  tail  from  barring  a  remainder-man  in  tail, 
by  his  warranty  descending  on  him,  unless  perhaps  it  should  be  considered  that 
every  particular  estate  in  remainder  is  carved  out  of  and  a  part  of  the  reversion, 
and  consequently  equally  entitled  to  protection.  As  to  a  remainder-man  in 
tail,  therefore,  the  operation  of  warranty  in  rebutting  the  heir,  remained  as  it 
was  before  the  statute ;  it  barred  him  both  with  and  without  assets.  This  is 
laid  down  and  explained  with  great  learning  and  force  of  argument  by  lord 
chief  justice  Vaughan,  in  his  argument  in  Bole  v.  Horton.  See  his  Reports, 
p.  360.  The  case  there  was,  that  William  Vescy  devised  to  John  Vescy,  his 
eldest  son,  and  the  heirs  male  of  his  body ;  and  for  want  of  such  issue  to  Wil- 
liam Vescy,  another  of  his  sons,  and  the  heirs  male  of  his  body ;  and  for  want 
of  such  issue  to  his  own  right  heirs.  John,  upon  his  father's  death,  entered, 
and  died,  leaving  issue  only  two  daughters ;  William  then  entered  and  aliened 
with  warranty,  and  died  without  issue.  The  question  was,  whether  the  war- 
ranty rebutted  the  daughters.  Lord  chief  justice  Vaughan  was  of  opinion  that 
the  warranty,  not  being  accompanied  with  assets,  would  not  have  barred  his 
own  issues  in  tail,  if  there  had  been  any,  or  the  two  daughters,  who  claimed 
the  reversion,  both  issues  in  tail  and  the  reversioners  being  protected  by  the 
statute  de  donis:  but  he  admitted,  that  if  there  had  been  any  intermediate 
remainder  in  tail,  the  warranty  would  have  rebutted  all  who  claimed  under  that 
remainder,  a  remainder  in  tail  not  being  under  the  protection  of  the  statute. 
The  only  point  before  the  court  in  this  case  was,  upon  the  operation  of  the 
warranty  to  rebut  the  reversioners.  Upon  this  the  court  was  divided ;  the 
chief  justice  and  justice  Archer  were  for  the  demandant;  and  justice  Wyld 
and  justice  Atkins  for  the  tenant.  The  next  statute  which  restrained  the 
operation  of  warranty  was  11  Henry  7.  ch.  20.  by  which  the  warranty  of  the 
wife  of  her  husband's  lands,  either  with  or  without  her  succeeding  husband, 
was  held  to  be  void.  The  last  statute  which  has  been  enacted  for  the  purpose 
of  restraining  the  operation  of  warranty,  is  the  4  and  5  Ann.  ch.  16.  by  which 
all  warranties  of  tenant  for  life  are  declared  void ;  and  all  collaterall  warranties 
of  any  ancestor  who  has  not  an  estate  of  inheritance  in  possession,  a  re  declared 
void  against  the  heir.  But  this  statute  does  not  extent  to  the  alienation  of 
tenant  in  tail  in  possession.  The  consequence  is,  that  even  at  this  day,  if  a 
tenant  in  tail  in  possession  discontinues  his  estate  with  warranty,  it  is  a  bar  with 

assets 


L.  3,  C.  13.  Sect.  710.     Of  Wairantie.  [373.  b. 

convey  the  discent  hy  meanes  of  her  eldest  sister,  and  therefore  as  to  this 
moitie,  this  is  a  collateral  warrantie.  But  as  to  the  other  moitie,  ivhich 
belonqeth  to  her  elder  sister,  the  warrantie  is  no  bar  to  the  younger  sister, 

because 


assets  to  his  issue,  and  witliout  assets   to   those  in  reuiainJer.     Supposing 
therefore,  the  common  case  of  a  limitation  to  the  first  and  other  sons  succes- 
sively in  tail  male ;  if  the  first  son,  when  in  possession,  levies  a  fine,  that  is  a 
discontinuance  of  the  remainders   to  the  other  sons  ;  and  by  reason  of  the 
warranty  contained  in  the  concord,  it  is   a  bar  to  them,  even  without  assets. 
It  is  the  same  if  he  executes  a  feoffment,  and  accompanies  it  with  a  warranty. 
It  remains  to  observe,  that  no  warranty  extends  to  bar  any  estate,  either  in 
possession,  reversion,  or  remainder,  unless  before,  or,  at  least,  at  the  time  that 
the  warranty  is  made,  it  is  divested  or  displaced.     See  Seymour's  case,  10  Rep. 
96. — These,  it  is  presumed,  are  the  general  outlines  of  the  doctrine  of  warranty. 
The  reader  will  observe,  by  what  has  been  said  on  that  subject,  that  at  common 
law.  the  operation  of  a  warranty  to  rebut  the  heir  could  hold  in  no  case  where 
the  heir  claimed  the  estate  warranted  from  the  ancestor  by  descent ;  for,  at  the 
common  law,  wherever  the  ancestor  had  the  inheritance,  he  could  alien  it  from 
the  issue ;  therefore  the  warranty,  as  to  the  purpose  of  rebutter,  was  perfectly- 
inoperative.     The  statutes  have  made  no  alteration  in  these  respects.     Had  it 
been  held  that  the  statute  de  don  is  did  not  restrain  the  effect  of  the  warranty  to 
rebut  the  issue,  this  principle  would  have  been  broken  into,  as  the  heir  in  that 
case 'would  have  been  rebutted  by  his  ancestor's  warranty  from  an  estate  which 
he  claimed  to  take  from  him  by  descent ;  but  as  the  contrary  construction  was 
received,  the  principle  remains  as  it  did  at  the  common  law.     The  consequence 
is,  that  without  assets  the  ancestor's  warranty  never  did,  and  does  not  now  bind 
the  heir  in  any  case,  except  where  he  takes  by  purchase ;  and   that  when  he 
does  take  by  purchase,  it  binds  him  either  with  or  without  assets,  in  every  case 
where  the  contrary  has  not  beene  enacted  by  statute.     Upon  inquiry  it  will  be 
found  that  the  cases  where  the  operation  of  warranty  still  prevails  are  reduced 
to  two  ;  the  first,  that  by  the  construction  of  the  statute  de  donis,  the  ancestor's 
warranty  binds  the  issues  in  tail  with  assets;  the  other,  that,  at  common  law, 
the  warranty  of  the  ancestor,  tenant  in  tail  in  possession,  still  continues  (unless 
the  contrary  can  be  supported  on  the  ground  before  hinted  at  to  bar  those  in 
remainder  without  assets.     It  is  observable,  that  all  warranties  are  collateral, 
so  far  as  they  are  extraneous  to   the  estate,  and  by  way  of  contradistinction 
to  those  rights,  incidents,  or  qualities,  which  by  their  nature  are  inherent  in, 
annexed  to,  or  issuing  out  of  the  estate  which  they  accompany.     In  this  sense 
the  word  collateral  frequently  occurs  in  our  law  books.     Thus,  1  Rep.  121.  b. 
an  use  at  common  law  is  said  to  be  a  trust  or  confidence,  not  issuing  out  of 
land,  but  a  thing  collateral,  annexed  in  privity  to  the  estate.     In  the  same  sense 
it  is  used  in  the  well  known  distinction  between  powers  relating  to  the  estate 
of  the  donee  of  the  power  and  collateral  powers.     Thus,  whether  the  warranty 
descends  lineally  or  collaterally,  whether  the  estate  and  the  warranty  descend 
from  the  same  person  or  from  different  persons,  and  whether  the   warranty  is 
considered  as  to  its  operation  of  rebutting  the  heir,  or  of  entitling  the  alienee 
to  vouch  the  warrantor,  it  is,  in  its  nature,  collateral  to  the  estate  which  it 
accompanies.     If  in  some  cases  it  bars  the  heir  from  claiming,  and  in  others  it 
does  not,  it  is  only  because  the  statute  law  has  said,  that  in  some  cases  where 
by  the  common  law  it  would  have  operated  as  a  bar,  it  shall  no  longer   have 
that  operation ;  and  if,  by  the  statute  de  dom's,  the  warranty  of  tenant  in  tail 
did  not  bar  the  issue  without  assets,  but  barred  it  with  assets,  this  is  not  from 
any  pre-established  distinction  between  lineal  and  collateral  warranty,  but  be- 
cause the  judges,  upon  the  construction  of  the  statute  de  donis,  held  the  issues  in 
tail  and  the  reversion  should  not  be  deprived  of  the  estate  by  the  indirect  and 

circuitous 


373.  b.]         Of  Warmntie.     L.  3.  C.  13.  Sect.  711,  712. 

because  she  may  convey  her  discent  as  to  that  moitie  which  helongeth  to 
her  elder  sister  by  the  same  elder  sister,  so  as  to  this  moitie  ivhich  be- 
longeth  to  the  elder  sister,  the  ivarrantia  is  lineall  to  the  younger  sister. 


Sect.  711. 

J  iVZ)  note,  that  as  to  him  that  demandeth  fee  simple  by  any  of  his 
ancestors,  he  shall  be  barred  by  ivarrantie  lineall  ivhich  descendeth 
upon  him,  unlesse  he  be  restrained  by  some  statute. 


Sect.  712. 

J^UT  hee  that  demandeth  fee  tayle  by  writ  of  formedon  in  discender, 

shall  7iot  bee  barred  by  lineall  warrantie,  unlesse  he  hath  assets,  by 

discent  in  fee  simple  by  the  same  ancestour  that  made  the  ivarrantie.  But 

collaterall  ivarrantie  is  a  barre  to  him  that  demandeth  fee,  and  also  to 

him  that  demandeth  fee  tayle  without  any  other  discent  of  fee  simple,  except 

in 


circuituous  operation  of  warranty,  when  that  statute  had  declared  they  should 
not  be  deprived  of  it  by  the  direct  alienation  of  common  law  conveyances. — 
The  chief  part  of  the  observations  offered  to  the  reader  of  this  note  are  grounded 
on  what  was  said  by  lord  Vaughan  in  the  argument  above  referred  to ;  he  con- 
cludes it  by  saying.  ''  The  doctrine  of  the  binding  of  lineal  and  collateral 
"  warranties,  or  their  not  binding,  is  an  extraction  out  of  men's  brains  and 
"  speculations  many  scores  of  years  after  the  statute  de  donis. — And  if  Little- 
"  ton  (whose  memory  I  much  honour)  had  taken  that  plain  way  in  resolving 
"  his  many  excellent  cases  in  his  Chapter  of  Warranty,  of  saying  the  warranty 
"  of  the  ancestor  doth  not  bind  in  this  case,  because  it  is  restrained  by  the 
"  statute  of  Gloucester,  or  the  statute  de  donis;  and  it  doth  bind  in  this  case, 
"  as  at  the  common  law,  because  not  restrained  by  either  statute  (for  when 
*'  he  wrote  there  were  no  other  statutes  restraining  warranties,  there  is  now 
"  a  third,  11  H.  7.)  his  doctrine  of  warranties  had  been  more  clear  and  satis- 
"  factory  than  now  it  is,  being  intricated  under  the  terms  of  lineal  and 
"  collateral ;  for  that  in  truth  is  the  genuine  resolution  of  most,  if  not  of  all  his 
"  cases;  for  no  man's  warranty  doth  bind,  or  not,  directly,  and  c\  priori,  be- 
"  cause  it  is  lineal  or  collateral;  for  no  statute  restrains  any  warranty  under 
"  those  terms  from  binding,  nor  no  law  institutes  any  warranty  in  those  terms; 
"  but  those  are  restraints  by  consent  only  from  the  restraints  of  warranties 
*'  made  by  statutes."  Yaugh.  375. — Lord  Holt  is  also  reported  to  have  said, 
"  The  true  reason  of  collateral  warranty  was  the  security  of  purchasers,  and 
"  for  their  encouragement;  as  also,  for  the  establishing  and  settling  the  estates 
"  of  such  as  were  in  by  title,  or  descent  cast;  and  this  was  the  only  security 
"  such  persons  could  have  at  common  law.  And  because  the  estate  of  such 
"  persons  as  are  in  by  title  are  much  favoured  in  law,  there  covenants  that 
"  were  for  strengthening  of  them  were  favoured  likewise.  And  in  those  days 
"  there  was  no  need  of  lineal  warranty ;  but,  however  the  force  of  that  is 
"  taken  away  by  the  statute  de  donis,  and  common  recovery  is  not  upon  the 
"  supposition  of  recompense  in  value,  and  never  was  within  the  statute,  but 
"  always  as  much  out  of  it  as  if  it  were  so  mentioned  by  express  words."  And 
this,  he  said,  was  my  lord  Hale's  opinion,     12  Mod.  512. — [Note  328.] 


L.  3.  C.  13.  Sect.  712.     Of  Warrantie.     [373.  b.  374.  a. 

in  cases  ivMch  are  restrained  hy  the  statutes,  and  in  other  cases  for  cer- 
taine  causes,  as  shall  be  said  hereafter  (1). 

"  TTATH issue  two  daughters^     If  husband  and  wife,  tenants  5  E.  2.  Garr.  78. 

in  especiall  tajle,  have  issue  a  daughter,  and  the  wife  die,  Lib.  8.  ful.  41. 
the  husband  by  a  second  wife  hath  issue  another  daughter,  and  ^™  ^  *^^^^' 
discontinueth  in   fee   and  dieth,  a  collaterall  ancestor  of  the  (lo  Rep.  95.) 
daughters  releaseth  to  the  discontinuee  with  warranty  and  dieth, 
the  warrantie  descendeth  upon  both  daughters,  yet  the  issue  in 
taile  shall  bee  barred  of  the  whole  ;  for  in  judgement  of  law  the  (Ante  367.  b.) 
entrie  warrantie  descendeth  upon  both  of  them.  (2  Cro.  217, 

^  218.) 

"Aiid  the  elder  entreth  into  the  echoic,  and  thereof  maJceth  a 
feoffment,  &c."     Here  it  is  to  be  understood,  that  when  one  co- 
parcener doth   generally  enter  into  the  whole,  this  doth  not  (Ant.  189.  a. 
devest  the  estate  which  descendeth  by  the  law  to  the  other,  un-  ^^^-  ^-^ 
lesse  shee  that  doth  enter  claimeth  the  whole,  and  taketh  the  ^^^  cha'mer'of 
profits  of  the  whole ;  for  that  shall  devest  the  freehold  in  law  of  Discent,  Sect. 
the  other  parcener.  398. 

Otherwise  it  is  after  the  parceners  be  actually  seised,  the 

taking  of  the  whole  profits,  or  any  claime  made  by  the  one, 

cannot  put  the  other  out  of  possession  without  an 

[37-4.  "I  fi®"  actuall  putting  out  or  disseisin.     And  in  this 
a.     J  case  of  Littleton,  when  one  coparcener  entreth  into 
the  whole,  and  maketh  a  feofi'ment  of  the  whole,  this 
devesteth  the  freehold  in  law  out  of  the  other  coparcener. 

Now  seeing  the  entrie  in  this  case  of  Littleton  devested  not 
the  estate  of  the  other  parcener,  if  no  further  proceeding  had 
beene,  then  it  is  to  be  demanded,  that  seeing  the  feoifement  doth 
worke  the  wrong,  and  bee  the  wrong  either  a  disseisin,  or  in  na- 
ture of  an  abatement,  how  can  the  warrantie  annexed  to  that 
feofi"eraent  that  wrought  the  wrong  be  collaterall,  or  binde  the 
youngest  sister  for  her  part  ?    To  this  it  is  answered,  that  when 
the  one  sister  entreth  in  the  whole,  the  possession  being  void, 
and  maketh  a  feoifment  in  fee,  this  act  subsequent  doth  so  ex-  pi.  Com.  543. 
plaine  the  entry  precedent  into  the  whole,  that  now  by  construe-  (5  Rep.  51. 
tion  of  law  she  was  only  seised  of  the  whole,  and  this  feoifement  ^*'^'-  '^'''~^-  '^•^ 
can  bee  no  disseisin,  because  the  other  sister  was  never  seised ; 
nor  any  abatement,  because  they  both  made  but  one   hciro  to  (Rect.  .398. 
the  ancestour,  and  one  freehold  and  inheritance  descended  to  ^''^st.  393.  b.) 
them.     So  as  in  judgement  of  law  the  warrantie  doth  not  com- 
mence by  disseisin  or  by  abatement,  and  without  question  her 
entrie  was  no  intrusion. 

Tenant  in  taile  hath  issue  two  daughters,  and  discontinueth 
in  fee,  the  youngest  disseiseth  the  discontinuee  to  the  use  of 
herselfe  and  her  sister,  the  discontinuee  ousteth   her,  against 
whom  she  recovereth  in  an  assise,  the  eldest  agrceth  to  the  dis- 
seisin, as  she  may,  against  her  sister,  and  becomes  joyntenant 
with  her.     And  thus  is  the  booke  in  the  21  Assise  [/;]  to  be  [»]  21  Ass. 
intended,  the  case  being  no  other  in  effect;  but  .1.  disseiseth  P- 1^- 
one  to  the  use  of  himselfe  and  B.,  B.  agreeth;  by  this  he  is  ^^^^'  ^^""^ 
joyntenant  with  A. 

''And 


(1)  The  observations  of  Lord  Vaughan  on  this  Section,  and  the  comment 
upon  it,  deserve  attentive  perusal.     See  Vaugh.  375. 


374. 1). j  Of  T\^arrantie.      L.  3.  C,  13.  Sect.  712. 

llSf°  ''And  note,  that  as  to  him  that  demandeth  fee  rSV^.  1 

3E.  3.  22.  simple,  &c."  In  these  two  Sections  there  are  expressed  [_     ^-     J 

f  f'  ^'  ^fi'  ^^'  foure  legall  conclusions  : 

7  E.  3.  54!  57.  First,  that  a  lineall  warrantie  doth  binde  the  right  of  a  fee 

9E.  3. 16.  simple. 

10  E.  3.  14.  Secondly,  that  a  lineall  warrantie  doth  not  binde  the  right  of 

27.  '20  E.  3.  *  ^Q  estate  taile,  for  that  it  is  restrained  by  the  statute  of  donis 

Ibid.  39.  conditional ihiis. 

P  S'  o'  CO*  Thirdly,  that  a  lineall  warranty  and  assets  is  a  barre  of  the 

41  £  3'     ■  right  in  taile,  and  is  not  restrained  (as  hath  beene  said)  by  the 

Garr.  16.  Mich,     said  act. 

3S  E.  3.  Coram        Fourthly,  that  a  collaterall  warranty  made  by  a  collaterall  an- 

Colehe^er's*  ^^   cestor  of  the  donee,  doth  binde  the  right  of  an  estate  taile,  albeit 

case.  45  Ass.  6.    there  be  no  assets;  and  the  reason  thereof  is  upon  the  statute  of 

PI.  Com.  554.       donis  conditionalihus,  for  that  it  is  not  made  by  the  tenant  in 

Vid  Sect  703     taile,  &c.  as  the  lineall  warrantie  is. 

747.' 

To  this  may  be  added,  that  the  warranty  of  the  donee  in 
(Moor,  96.  i^\\G,  which  is  collaterall  to  the  donor,  or  to  him  in  remainder, 

accord.  Vaugh.  being  heire  to  him,  doth  binde  them  without  any  assets.  For 
382,  contra.  though  the  alienation  of  the  donee  after  issue  doth  not  barre 
See  Vaugh.  365.)  ^j^^  donor,  which  was  the  mischiefe  provided  for  by  the  act,  yet 
the  warranty  being  collaterall  doth  barre  both  of  them ;  for  the 
act  restraineth  not  that  warranty,  but  it  remaineth  at  the  com- 
mon law,  as  Littleton  after  saith :  and  in  like  manner  the  war- 
ranty of  the  donee  doth  barre  him  in  the  remainder. 

''Assets,  (id  est)  quod  tantundem  valet,"  sufficient  by  discent. 

Note,  assets  requisite  to  make  a  lineall  warranty  a  barre  must 

riota,  lib.  2.  ca.   have  six  qualities.     First  it  must  be  assets  (that  is)  of  equall 

65.  Britt.  185.     yalue  or  more  at  the  time  of  the  discent.     Secondly,  it  must  be 

le^Ef's^^Ass.^li    ^^  discent,  and  not  by  purchase  or  gift.     Thirdly,  as  Littleton 

43  e!  3.  9.   '   '    here  saith,  it  must  be  assets  in  fee  simple,  and  not  in  taile,  or 

711.6.3.  for  another  man's  life.     Fourthly,  it  must  descend  to  him  as 

?2  Rolf"  Abr        ^^^^'^  *^  *^^  ^^"^®  ancestor  that  made  the  warranty,  as  Littleton 

774,  775.)     *       also  here  saith.     Fifthly,  it  must  be  of  lands  or  tenements,  or 

rents,  or  services  valuable,  or  other  profits  issuing  out  of  lands 

24  E.  3.47.  or  tenements,  and  not  personall  inheritances,  as  annuities  and 

(6  Rep.  56.)         the  like.    Sixthly,  it  must  be  in  state  or  interest,  and  not  in  use 

or  right   of  actions  or  rights  of  entry,  for  they  are  no  assets 

until  they  be  brought  into  possession,     [a]  But  if  a  rent  in  fee 

[a]  31  E.  3.         simple  issuing  out  of  the  land  of  the  heire  descend  unto  him 

Ass.  5. 13  E.  3.    -whereby  it  is  extinct,  yet  this  is  assets,  and  to  this  purpose  hath 

Recovcrie  in         ..-.•'  i.     c  ^  .• 

value  17  ^^  judgement  01  law  a  continuance. 

Lib.  8.  foi.  31.  [i]  A  seigniory  in  fee  almoigne  is  no  assets,  because  it  is  not 

Butler  &  Baker's  valuable,  and  therefore  not  to  be  extended;  and  so  it  seemeth  of 

m  U  E  3  ^  seigniory  of  homage  and  fealt3^.     But  an  advowson  is  assets, 

Mesne,  7.  '  whereof  [c]  Fleta  saith ;  "Item  de'ecclesiis  quse  ad donationem  do- 

Registrem,  293.    mini  pertinent  quot  sunt,  et  qua;,  et  uhi,  ei  quantum  valeatquceliber 

[c]  Fleta,  hb.  2.  g(,(,i^g{(^  „g^  annum  secundum  veram  ipsius  eestimationem,  et  pro 

cap.  65.  (JNj.  -r,.  ,  -,  .       7     •  .  1     A 

marca  solidos  extendatur,  ut  si  ecclesui  centum  marcus  valeat  per 

annum  ad  centam  solidos  extendatur  ad oocatio per  annum  ( 1 ).  And 

herewith 

(N)  See  Fleta,  lib.  2.  cap.  71.  ?  10. 

(1)  Bro.  Assets  per  Discent,  21.  contra. 


L.  3.  C.  13.  S.  713, 14.    Of  Warrantie.      [374.  h.  375.  a. 

herewith  agreeth  Britton,  and  others  have  reckoned  a  shilling  in  Britton,  fol.i85. 
the  pound;  and  ^nVton  added  further,  nies  si  ^a  afZwi/^so/i  diiist  Extent. manerii. 
estre  vendue,  adovqucs  serr'  le  reawnaUe  price  solonque  le  value  32^h''V'^21 
en  un  an  a  eel  extent.     Wherein  it  is  to  be  observed,  that  anti-  33  e.'  3.' 
quitie  did  ever  reckon  by  markes.  Garr.  102. 


Sect.  713. 

ALSO,  if  land  bee  given  to  a  man,  and  to  the  heires  of  his  hodie  he- 
gotten,  who  takcth  wife,  and  have  issue  a  son  hetiveene  them,  and 
the  husband  discontinues  the  taile  in  fee  and  dieth,  and  after  the  wife 
releaseth  to  the  discontinuee  in  fee  with  warrantie,  ^c  and  dieth,  and 
the  warranty  desce7ids  to  the  son,  this  is  a  collateral!  warrantie. 

''I^HIS  case  standeth  upon  the  same  reason  that  divers  oHier 
J  formerly  put  by  our  author  doe,  viz.  that  because  the  hoire 
claimeth  only  from  thGiather  jjer  forinamdoni,  and  nothing  from 
the  wife,  that  therefore  the  warrantie  of  the  wife  is  collaterall, 
and  the  warrantie  made  by  any  ancestor  male  or  female  of  the 
wife  bindeth ;  and  here  the  warrantie  descendeth  after  the  dis- 
cent  of  the  right. 


[^I^-] 


s^  Sect.  714.  S???«,^^^'^- 

Ant.  187.  a.) 


iP  UT  if  lands  bee  given  to  the  husband  and  wife,  and  to  the  heires  of 
their  two  bodies  begotten,  who  have  issue  a  son,  and  the  husband 
discontinue  the  taile  and  dieth,  and  after  the  wife  release  with  ivarran- 
tie  and  dieth,  this  warrantie  is  but  a  lineall  warranty  to  the  son  ;  for 
the  Sonne  shall  not  be  barred  in  this  case  to  sue  his  writ  of  formedon 
unlesse  that  hee  hath  assets  by  discent  i?i  fee  simple  by  his  mother,  be- 
cause their  issue  in  the  tvrit  of  formedon  ought  to  convey  to  him  the  right 
as  heire  to  his  father  and  mother  of  their  *  tvjo  bodies  begotten  per  formam 
doni ;  and  so  in  this  case  the  warrantie  of  the  father  and  the  warrantie 
of  the  mother  are  but  lineall  warrantie  to  the  heire,  ^c. 

HERE  is  a  point  worthy  of  observation,  that  albeit  in  this  35  e.  3.  tit. 
case  the  issue  in  taile  must  claime  as  heire  of  both  their  Gar.  73. 
bodies,  yet  the  warrantie  of  either  of  them  is  lineall  to  the  issue ;  J.^  ^"^'-  ■^^'■• 
and  yet  the  issue  cannot  claime  as  heire  to  either  of  them  alone,  gggi,  25^^^'  ^' 
but  of  both. 

If  lands  be  given  to  a  man  and  to  a  woman  unmarried,  and 
the  heires  of  their  two  bodies,  and  they  intermarrie,  and  are 
disseised,  and  the  husband  release  with  warrantie,  the  wife  dieth, 
the  husband  dieth,  albeit  the  donees  did  take  by  moitics,  yet  the 
warrantie  is  lineall  for  the  whole,  because,  as  our  author  here 
saith,  the  issue  must  in  a  formedon.  convey  to  him  the  ricrht  as 
heire  to  his  father  and  his  mother  of  their  two  bodies  engendred  : 
and  therefore  it  is  collaterall  for  no  part. 

Sect. 

*  two,  not  in  L.  and  M.  or  Roh. 


375.  a.&b.376.  a.]  Of  Warrantie.  L.  3.  C.  13.  S.  715-16-17. 


Sect.  715. 

A  ND  note,  that  in  everie  case  wliere  a  man  demandeth  lands  in  fee 
taile  hy  ivrit  of  formedon,  if  any  of  the  issue  in  taile  that  hath  pos- 
session., or  that  hath  not  possession,  make  a  tvarrantie,  ^c.  if  hee  tvhich 
siieth,  the  writ  of  formedon  might  by  any  possibilitie,  by  matter  which 
might  be  en  fait,  convey  to  him,  by  him  that  made  the  ivar- 
rantie  per  formam  doni,  *  this  is  a  Ji^^  lineal  ivarrantie,  and  VSV^.l 
not  collaterall.  L     b.     J 

35  E. 3.  Gar.  73.  r\p  this  sufficient  hath  beene  sYiid  before,  sed  nnnqudvi  nimis 
^  dicitiir  quod  nztnqvdm  satis  dicitur  ;  for  it  is  a  point  of  great 
use  and  consequence. 


(Vaugh.  377.)  1.     HM^ 

(8  Rep.  51.)  Sect.  71o. 

(Vaugh.  367.  377.) 

A  LSO,  if  a  man  hath  issue  three  sonnes,  and  givcth  land  to  the  eldest 
Sonne,  to  have  and  to  hold  to  him  and  to  the  heires  of  his  bodie  be- 
gotten, and  for  default  of  such  issue,  the  remahider  to  the.middle  sonne, 
to  him  and  to  the  heires  of  his  bodie  begotten,  and  for  defaidt  of  such 
issue  t  of  the  middle  sonne,  the  remainder  to  the  youngest  son,  and  to 
the  heires  of  his  bodie  begotten  ;  in  this  case,  if  the  eldest  |  discontinue 
the  taile  in  fee,  and  binde  him  and  his  heires  to  warrantie,  and  dieth 
tvithout  issue,  this  is  a  collaterall  ivarrantie  to  the  middle  son,  and  shall 
be  a  bar  to  demand  the  same  land  by  force  of  the  remainder  ;  for  that 
the  remainder  is  his  title,  and  his  elder  brother  is  collaterall  to  this  title, 
ivhich  commenceth  by  force  of  the  remainder.  In  the  same  manner  it 
is,  if  the  middle  son  hath  the  same  land  by  force  of  the  remainder,  be- 
cause his  eldest  brother  made  no  discontinuance,  but  died  without  issue 
of  his  bodie,  and  after  the  middle  make  a  discontinuance  with  warran- 
tie, ^c.  and  dieth  w'ithout  issue,  this  is  a  collaterall  warrantie  to  the 
youngest  son.  And  also  in  this  case,  if  any  of  the  said  sotines  be  dis- 
scisscd,  a7id  the  father  that  made  the  gift,  ^c.  releaseth  to  the  disseisor 
all  his  right  §  ivith  ivarrantie,  ^  this  is  a  collaterall  ivarrantie  to  that 
son  upon  whom  the  warrantie  descendeth,  causa  qua  supra. 


»•  Sect.  717.  PI^-] 

A  ND  80  note,  that  where  a  man  that  is  collaterall  to  the  title,  |  and 
releaseth  this  with  ivarrantie,  ^e.  this  is  a  collaterall  warrantie. 

HERE 

*  dx.  added  in.L.  and  M.  and  Knh.  §  d-c.  added  in  L.  and  M.  and  Roh. 

•j"  of  the  middle  sonne,  not  in  L.  and  ^  dc.  added  in  L.  and  M.  and  Roh. 

M.  or  Roh.  I  ^'^'  added  in  L.  and  31.  and  Roh. 
I  son,  added  in  L.  and  M,  and  Roh. 


L.  3.  C.  13.  Sect.  718.       Of  Warrantie.  [376.  a. 

HERE  it  appearoth  that  it  is  not  adjudged  in  law  a  collateral!  8  R.  2. 
warrantie  in  respect  of  the  bloud,  for  the  warrantie  may  be  y?J'  g  ^q, 
collaterall,  albeit  the  bloud  be  lineall ;  and  the  warrantie  may 
be  lineall,  albeit  the  bloud  be  collaterall,  as  hath  beene  said. 
But  it  is  in  law  deemed  a  collaterall  warrantie,  in  respect  that 
he  that  maketh  the  warrantie  is  collaterall  to  the  title  of  him 
upon  whom  the  warrantie  doth  fall;  as  by  the  example  which 
Littleton  here  putteth,  and  by  that  which  hath  beene  formerly 
said,  is  manifest. 


Sect.  718. 

A  LSO,  if  a  father  giveth  land  to  his  eldest  son,  to  have  and  to  hold 
to  him  and  to  the  heires  males  of  his  body  hegotton,  the  remainder 
to  the  second  sonne,  ^-c.  if  the  eldest  sonne  alieneth  in  fee  with  warranty, 
^c.  and  hath  issue  female,  and  dieth  without  issue  male,  this  is  no  col- 
laterall ivarranty  to  the  second  son,  for  he  shall  not  bee  barred  of  his 
action  of  formedon  in  the  remainder,  because  the  warranty  descended 
(B)  to  the  daughter  of  the  eldest  son,  and  not  to  the  second  sonne  (ceo 
n'est  pas  collaterall  garrantie  al  second  fits,  f  car  il  ne  serra  barre  de 
son  action  de  formedon  en  le  remainder,  pur  ceo  que  le  garrantie  dis- 
cendist  al  file  del  eigne  fits,  et  nemy  al  second  fits);  for  every  warrantie 
which  descends,  descendeth  to  him  that  is  heire  to  him  who  made  the 
warrantie,  by  the  common  law. 

HERE  is  rehearsed  a  maxime  of  the  common  law,  that  every  Vid  Sect.  3. 
warrantie  doth  descend  upon  him  that  is  heire  to  him  that  ^^3.  735,  73(5, 
made  the  warrantie,  by  the  common  law,  as  by  this  example  it  h^'t  329  a. 
appeareth.  Cro.  EUz.  72.) 

"  To  him  that  is  heire  to  him  who  made  the  warrantie,  by  the 
common  law,  &c."  Hereupon  many  things  worthy  to  be  knowne 
are  to  be  understood. 

[a]  First,  that  if  a  man  infeoffeth  another  of  an  acre  of  ground  [a]  40  E.  3.  14. 
with  warrantie,  and  hath  issue  two   sons,  and  dieth   seised  of 
another  acre  of  land,  of  the  nature  of  burrough  English,  the  (^I^J-  Kep.  96. 
feoffee  is  impleaded,  albeit  the  warrantie  descendeth  only  upon  "    '""'  "  ^'' 
the  eldest  sonne,  yet  may  he  vouch  them  both;  the  one  as  heire 
to  the  warrantie,  and  the  other  as  heire  to  the  land;  for  if  he 
should  vouch  the  eldest  son  only,  then  should  he  not  have  the 
fruit  of  his  warranty,  viz.  a  rccoverie  in  value;   the  youngest  son 
only  he  cannot  vouch,  because  he  is  not  heire  at  the  common 
law,  upon  whom  the  warrantie  descendeth  (1). 

So 

■{•  car  il  ne  serre  barre — no  luy  ledera,  L.  and  M.  and  Roh. 

(B)  Vld.  note  A.  on  Sect.  601. 


(1)  38  E.  3.  22.    43  E.  3.  19.     48  As^s.  41.     ^  E.  3.  55.     21  E.  3.  46. 
21  a:  3.  36.     11//.  7.  12.     6// 7.  2.     Hale's  MSS. 


376.  b.] 

[6]  22  E.  4.  10. 
4  E.  3.  55. 
27  H.  6.  1.  2. 
11  E.  3.  Det.  7. 
(8  Rep.  8.  b.) 
[c]  49  Ass.  4. 
38  E.  3.  22. 
(Hob.  25.) 

[rr\  32  E.  3. 
Vouch.  94. 
35  H.  6.  33. 


PI.  Com.  515. 


(2  Cro.  218.) 


[e]  17  E.  2.  tit. 
Reciiverie  in 
value,  33. 
1  E.  3.  12. 
33  E.  3. 
Judgtti.  222. 
14  E.  3.  ib.  160. 
10  E.  3.  52. 
18  E.  3.  51. 
Lib.  1.  fol.  96. 
Shelleye's  case. 
[/]  32  E.  3. 
Vouch.  94. 
per  Greene. 
(Plowd.  11.  a. 
Manxel's  case.) 


[</]  Vide  PI. 
Com.  fol.  514. 
(3  Rep.  5. 
10  Rep.  35. 
Dr.  and  Stud. 
41.  b.     8  Rep. 
101.  b.  See  Cro. 
Eliz.  670.) 


Of  Wammtie.        L.  3.  C.  13.  Sect.  718. 

[h]  So  it  is  of  heires  in  gavelkind,  the  eldest  may  bee 
vouched  as  heire  to  the  OO^  warranty  and  the  other  FSyG.! 
sonnes  in  respect  of  the  inheritance  descended  into  L  ^-  J 
them,  [c]  And  in  like  sort,  the  heire  at  the  common 
law,  and  the  heire  of  the  part  of  the  mother,  shall  bee  vouched ; 
but  the  heire  at  the  common  law  may  be  vouched  alone  in  both 
these  cases,  at  the  election  of  the  tenant:  et  sic  de  similibus. 
[(/]  In  the  same  manner  if  a  manner  dieth  seised  of  certaine  lands 
in  fee,  having  issue  a  sonne  and  a  daughter  by  one  venter,  and 
a  sonne  by  another,  the  eldest  sonne  entreth  and  dieth,  the  land 
descends  to  the  sister ;  in  this  case  the  warrantie  descendeth  on 
the  sonne,  and  he  may  be  vouched  as  heire,  and  the  sister,  as 
heire  of  the  land :  in  which  and  the  other  case  of  burrough 
English,  the  sonne  and  heire  by  the  common  law  having  nothing 
by  discent,  the  whole  losse  of  the  recoverie  in  value  lieth  upon 
the  heires  of  the  land,  albeit  they  be  no  heires  to  the  warrantie. 
Then  put  the  case  that  there  is  a  warrantie  paramount,  Who  shall 
deraigne  that  warrantie  ?  and  to  whom  shall  be  recompense  in 
value  goe  ?  Some  have  said,  that  as  they  are  vouched  together, 
so  shall  they  avouch  over,  and  that  the  recompense  in  value  shall 
enure  according  to  the  losse ;  and  that  the  effect  must  pursue 
the  cause,  as  a  recoverie  in  value  by  a  warrantie  of  the  part  of 
the  mother  shall  goe  to  the  heire  of  the  part  of  the  mother,  &c. 

Some  others  hold,  that  it  is  against  the  maxime  of  law,  that 
they  that  are  not  heires  to  the  warrantie  should  joyne  in  voucher 
or  to  take  benefit  of  the  warrantie  which  descended  not  to 
them;  but  that  the  heire  at  the  common  law,  to  whom  the 
warrantie,  descended,  shall  deraigne  the  warrantie,  and  recover 
in  value;  and  that  this  doth  stand  with  the  rule  of  the  common 
law. 

Others  hold  the  contrarie,  and  that  this  should  be  both  against 
the  rule  of  law,  and  against  reason  also;  for  by  the  rule  of  law 
[e]  the  vouchee  shall  never  sue  to  have  execution  in  value,  untill 
execution  be  sued  against  him.  But  in  this  case  execution  can 
never  be  sued  against  the  heire  at  the  common  law,  therefore  he 
cannot  sue  to  have  execution  over  in  value.  Second,  it  should 
be  against  reason  that  the  heire  at  the  common  law  should  have 
fotum  lucrum  and  the  speciall  heires  totum  damnum.  I  finde  in 
our  bookes  [/]  that  this  reason  is  yeelded,  that  the  speciall 
heire  should  not  be  vouched  only;  for  (say  they)  if  the  speciall 
heires  should  be  vouched  only,  then  could  not  they  deraigne  the 
warrantie  over;  which  would  be  mischievous,  that  they  should 
lose  the  benefit  of  the  warrantie,  if  they  should  be  vouched  only. 
But  if  the  heire  at  the  common  law  were  vouched  with  them, 
(as  by  the  law  he  ought)  all  might  be  saved;  and  therefore 
studie  well  this  point  how  it  may  be  done. 

[y]  If  tenant  in  generall  taile  be,  and  a  common  recoverie  is 
had  against  him,  and  his  wife,  where  his  wife  hath  nothing,  and 
they  vouch,  and  have  judgement  to  recover  in  value,  tenant  in 
taile  dieth,  and  the  wife  surviveth  :  for  that  the  issue  in  taile  had 
the  whole  losse,  the  recompence  shall  enure  wholly  to  him ;  and 
the  wife,  albeit  she  was  partie  to  the  judgement,  shall  have 
nothing  in  the  recompence,  for  that  she  loseth  nothing. 

\]i]  If  the  bastard  eigne  enter  and  take  the  profits,  he  shall  be 


[A]  17  E.  3.  59. 
20  E.  3. 

Vouch.  129.  32  E.  3.  Vouch.  94.  5  H.  7.  2 


vouched 


L.  3.  C.  13.  Sect.  719.      Of  Warrantie.  [376.  b. 

vouched  only,  and  not  the  bastard  and  the  mulier;  because  the 
bastard  is  in  appearance  heire,  and  shall  not  disable  himselfe. 

[i]  If  a  man  be  seised  of  lands  in  gavelkinde,  and  hath  issue  [{]  ll  H.  7. 12. 
three  sonnes,  and  by  obligation  bindeth  himselfe  and  his  heires  ^}  ^-  3- 
and  dieth,  an  action  of  debt  shall  be  maintainable  against  all  the  ^y  ^''^1^238 
three  sonnes,  for  the  heir  is  not  chargeable  unlesse  he  hath  lands  (Moor,  74.) 
by  discent. 

\_k]  So  if  a  man  be  seised  of  lands  on  the  part  of  his  mother,  [k]  11  H.  7. 12. 
and  binde  himselfe  and  his  heires  by  obligation,  and  dieth,  an  (2  Cro.  25.  b. 
action  of  debt  shall  lie  against  the  heir  on  the  part  of  the  mother,  233"  27V42"'' 
without  naming  of  the  heirc  at  the  common  law.     And  so  note  Hob.  26.) 
a  diversitie  between  a  personal!  lien  of  a  bond,  and  a  reall  lien 
of  a  warrantie. 


Sect.  719. 

* 2^0TE,  if  landhee  given  to  a  man,  and  to  the  lieirs  males  of  1m 
hodie  begotten,  and  for  default  of  such  issue,  the  remainder  thereof 
to  his  heires  females  of  his  body  begotten,  and  after  the  donee  in  tayle 
maketh  a  feoffment  in  fee  with  warrantie  accordingly,  and  hath  issue  a 
son  and  a  daughter  and  dieth,  this  tvarrantie  is  but  a  lineall  warrantie  to 
the  son  to  demand  by  a  writ  of  formedon  in  the  discender  ;  and  also  it 
is  but  lineall  to  the  daughter  to  demand  the  same  land  by  writ  of  forme- 
don in  the  remaynder,  unlesse  (A)  the  brother  dieth  without  issue  male 
(sinon  f  frere  deviast  sans  issue  male),  because  she  claymeth  as  heir  female 
of  the  bodie  of  her  father  ingendered.  But  in  this  case  if  her  brother  in 
Iiis  life  release  to  the  discontinuee,  ^-c.  with  warrantie,  ^c.  and  after  dieth 
without  issue,  this  is  a  collaterall  warranty  to  the  daughter,  because  shee 
cannot  convey  to  her  the  right  which  shee  hath  by  force  of  the  remainder 
by  any  means  of  discent  by  her  brother,  for  that  the  brother  is  collaterall 
to  the  title  of  his  sister,  and  therefore  his  warranty  is  collaterall  (ceo  est 
un  collateral  garrantie  a  le  file,  pur  ceo  que  el  ne  poit  conveyer  a  luy 
le  droit  que  el  ad  per  force  de  le  remaynder  per  ascun  meane  de  discent 
per  son  frere,  ^  pur  ceo  |  que  le  frere  est  collaterall  a  le  title  so  soer,  et 
pur  ceo  son  garrantie  est  collateral),  ^c. 

HERE 

^Mte—Also,  L.  and  M.  and  Roh.  R.  Toitel;  1583,  ly  W.  West;  1594,  Jy 

■f"  sinon — si   son,  L.  and  31.  Roh.  C.  Yetsweirt ;  and  by  that  of  16S9 .  It 

Pinson,  Redman,  and  MSS.      This  is  however  ohservahlc,  that  the  text  stood 

reading  (si  son)  ickich  materially  alters  as  above  in  the  first  edition  of  Coke  upon 

thesenseof  the  above  passage  of  Little-  Littleton  1628,  and  in  all  the  editions 

totiyWas  much  relied  on  by  lo7'dVanghan  to  the  9th  inclusive, 

in  his  Reports,  368,  369,  arid  is  also  1  et  added  in  L.  and  M.  and  Roh. 


accordingly  confirmed  by  edit.  1577 ,  by        t^'^*^  ^^^  '^^  ■^'  ^^^  ^^'  ^^^  ^^^ 


(A)  Upon  this  part  0/ sect.  719,  Itr.  Ritso  observes,  t%at,for  "unless  the  hrother  dieth 
ioithout  issue  male,"  we  should  read,  "  if  the  brother  dieth,  &c."  for  it  is  only  in  the  event 
of  the  brother's  dying  without  issue  male,  that  the  heire  female  can  have  any  claim  at  all. 
See  Mr.  Ritso's  Intr.  p.  114.  and  the  reading  above  under  f. 

Vol.  II.— 45 


376. 1).]  Of  Warmntie.      L.  3.  C.  13.  Sect.  719. 

[!]  24  E.  3.  ?.6.     Tl  ERE  it  appeareth,  that  [I]  whensoever  the  ancestor  taketh 

27  E.  3.  Age,l08.    [  1   ^j^j  estate  of  freehold,  a  limitation  after  in  the  same  convey- 

40  e"  3.  9  "  ^^^^  ^^  ^°y  ^^  '^'^  heires,  are  words  of  limitation,  and  not  of  pur- 

S7  H.  8.  Br.         chase,  albeit  in  words  it  be  limited  by  way  of  remainder  (1)  ; 

Niisine, 

1  &  40.  &  tit  Done  &  Rem.  61.     (Ant.  17.  b.  22.  b.    2  Roll  Abr.  417. 

1  Roll.  Abr.  627,  628.) 

and 


(1)  The  doctrine  of  law  expressed  in  the  test  is  generally  called  the  Rule 
IN  Shelley's  case: — and  has  been  discussed  by  several  gentlemen  of  the 
greatest  eminence  in  the  profession. 

I.  In  sir  }Yilliam  Blackstone' s  ai-gument  in  the  case  of  Ptrrin  v.  Blahe,  pub- 
lished by  Mr.  Hargrave  among  his  law  tracts,  fol.  500,  it  is  observed,  that, 
'•  where  there  is  a  gift  to  J,,  and  his  heirs  for  ever,  or  to^.  and  the  heirs  of  his 
'•body  begotten,  the  first  words  (to  A.')  create  an  estate  for  life;  the  latter  (to 
'•  his  heirs,  or  the  heirs  of  his  body)  create  a  remainder  in  fee,  or  in  tail,  which 
"  the  law,  to  prevent  an  abeyance,  refers  to  and  vests  in  the  ancestor  himself,  who 
"  is  thus  tenant  for  life,  with  an  immediate  remainder  in  fee  or  in  tail,  and  then 
"  by  the  conjunction  of  the  two  estates,  or  the  merger  of  the  less  in  the  greater, 
''  he  becomes  tenant  in  fee,  or  tenant  in  tail  in  possession."  This  exposition  of 
the  expression  in  question  sir  Wm.  Blackstone  afterwards  applies,  with  great 
ability  in  his  investigation  of  the  rule  in  Shelley's  case.  He  lays  it  down  as  a 
great  fundamental  maxim  upon  which  the  construction  of  every  devise  must 
depend,  that  the  intention  of  the  testator  shall  be  fully  and  punctually  observed 
so  far  as  the  same  is  consistent  with  the  established  rules  of  law,  and  no  far- 
ther. He  makes  a  distinction  between  the  rules  of  law  which  are  to  be  con- 
sidered as  the  fundamental  rules  of  the  property  of  this  kingdom,  and  are  there- 
fore of  that  essential,  permanent  and  substantial  kind,  which  cannot  be  exceeded 
or  transgressed  by  any  intention  of  a  testator,  however  clearly  or  manifestly  ex- 
pressed; and  those  rules  of  a  more  arbitrary,  technical,  and  artificial  kind, 
which  the  intention  of  a  testator  may  control.  He  then  supposes  that  there 
is  a  third  class  of  rules,  of  a  still  more  flexible  nature.  Among  the  rules  of  the 
first  class  he  reckons  these;  that  every  tenant  in  fee  simple,  or  fee  tail,  shall 
have  the  power  of  alienating  his  estates,  by  the  several  modes  adapted  to  their 
respective  interests;  that  no  disposition  shall  be  allowed  which  in  its  conse- 
quence tends  to  a  perpetuity ;  that  lands  shall  descend  to  the  eldest  son  or 
brother  alone,  or  to  all  the  daughters  or  sisters  in  partnership.  Among  the 
rules  of  the  second  class  he  reckons  those  rules  of  interpretation  by  which  the 
court  invariably  construe  particular  modes  of  expression  to  denote  a  particular 
intention  in  the  testator.  Thus,  says  he,  if  a  man  devises  his  land,  being  free- 
hold, to  another  generally,  without  specifying  the  duration  of  his  estate,  the 
courts  consider  it  as  evidence  that  he  intended  the  devisee  should  be  only 
tenant  for  life;  but  if  he  devises,  in  like  manner,  a  chattel  interest,  the  courts 
consider  it  to  be  evidence  of  his  intention  that  the  devisee  should  have  the 
total  property.  Among  the  rules  of  the  third  class  he  reckons  the  rule  in 
Shelley's  case.  Having  admitted  that  the  second  and  third  class  of  rules  allow 
(if  exceptions,  when  it  appears  to  be  the  testator's  intention  that  the  operation 
(if  his  devise  should  be  different  from  that  which  the  legal  operation  of  the 
words  in  which  it  is  penned  would  be,  he  adds,  that  this  intention  shall  not 
have  this  efi'ect,  unless  it  is  manifest  and  certain  :  so  that  if  his  intention  that 
his  words  should  operate  contrary  to  their  technical  and  legal  import,  does  not 
appear  by  express  words,  or  by  necessary  implication,  the  legal  operation  of 
the  words  must  take  effect.  He  applies  this  rule  to  the  case  of  Perrin  v. 
Blake.  He  argues  that  it  does  not  appear  by  any  evidence  that  the  testator 
intended  his  words  should  not  have  their  legal  operation  :  he  savs,  the  question 

is 


L.  3.  C.  13.  Sect.  719.    OfWarrantie.         [376.  b.  377.  a. 

and  therefore  here  the  remainder,  to  the  beires  females,  vcsteth 
ill  the  tenant  in  taile  himselfe.     And  it  is  good  to  bee 

[377.  "1   J8@"knowne,  that  for  learning  sake,  and  to  find  out  the  i  h.  6.  4. 
a.  reasonofthelaw,  these  limitations  to  the  heires  males  of  ii  H.  6.  13,  14. 

no    XT     o 

the  bodie,  and  after  to  the  heires  females  of  the  bodie  p^^/  jg_ 

Statham,  Devise.  PI.  Com.  414.  20  H.  6.  43.  Vid.  Litt.  ca.  Taile,  Sect.  24.  37  II.  8. 
Br.  Done  &  rem.  Gl.  &  tit.  Xosme,  1  &  40.  (Ant.  25.  a.  b.)  (Vaugh.  368,  g.  376. 
Ant.  374.  a. 

may 

is  not  whether  the  testator  intended  the  ancestor  should  or  should  not  have  a 
power  of  alienating  the  lands  devised  to  him,  or  should  have  only  an  estate  for 
his  life.  He  admits  it  to  be  clear,  that  he  intended  the  ancestor  should  not 
have  a  power  of  alienating  the  lands,  and  that  he  should  take  only  an  estate 
for  his  life :  but  the  real  question,  he  says,  is,  how  the  heirs  were  intended  to 
take,  whether  as  descendants  or  purchasers.  If  the  testator  intended  they 
should  take  as  purchasers,  the  ancestor  remained  tenant  for  life;  if  he  meant 
they  should  take  by  discent,  or  had  formed  no  intention  about  the  matter,  then, 
says  he,  by  operation  and  consequence  of  law  the  inheritance  is  vested  in  the 
ancestor.  He  says,  that  in  the  case  of  Perrin  and  Bhike,  it  is  neither  clearly 
expressed  nor  manifestly  to  be  implied  from  any  part  of  the  testator's  will,  that 
he  intended  the  heirs  should  take  as  purchasers;  he  therefore  concludes,  that 
the  words  in  question  should  be  construed  according  to  their  legal  operation  : 
and  consequently,  that  in  conformity  to  the  rule  laid  down  in  Shelley's  case, 
they  ■should  operate  not  as  words  of  purchase,  but  as  words  of  descent,  and  that 
the  ancester  therefore  should  take  an  estate  in  tail. 

II.  Mr.  Ilarjrave,  in  his  observations  concerning  the  rule  in  Shelley's  case, 
remarks,  that  those  who  wish  to  avoid  the  rule,  avow  that  they  consider  it  as 
subordinate  to  the  intention  of  the  testator,  as  a  rule  of  interpretation,  as 
merely  a  technical  construction  of  words,  which  yields  to  the  intention  when- 
ever they  are  opposed  to  each  other ;  that  as  soon  as  they  discover  that  it  is 
not  the  testator's  intention  that  the  first  taker  should  have  a  power  of  barring 
the  entail  to  his  heirs,  they  think  the  victory  over  the  rule  is  complete.  On 
the  other  hand,  those  who  wish  to  support  the  rule  insist  that  it  is  a  rule  of 
interpretation,  established  on  decrees  of  the  most  authoritative  decisions,  which 
cannot  be  departed  from  without  levelling  the  great  land-marks,  by  which  the 
titles  to  real  property  are  ascertained,  and  establishing  in  their  room  a  mon- 
strous latitude  of  uncertain  and  arbitrary  construction.  He  says,  he  finds  some- 
thing to  approve  and  something  to  condemn  on  both  sides  of  these  discordant 
comments  upon  the  rule ;  and  that  in  both  there  is  one  common  error.  To 
the  opponents  of  the  rule  he  admits,  that  where  the  rule  would  disappoint  a 
lawful  intention  sufficiently  expressed,  it  ought  not  to  be  effected.  But  h.- 
asks,  whether  the  intention  is  lawful.  The  rule,  as  he  considers  it,  is  a  con- 
clusion of  law  upon  certain  principles — so  absolute  as  not  to  have  any  thing  t.) 
say  to  the  intention,  if  these  premises  really  belong  to  the  case ;  and  these 
premises,  he  insists,  are  an  intention  by  heirs  of  the  body,  or  other  words  of 
inheritance,  to  comprehend  the  whole  line  of  heirs  to  the  tenant  for  life,  and 
so  to  build  a  succession  upon  his  preceding  estate  of  freehold.  This  being  so, 
if  in  such  case  the  word  heirs  is  used  in  that  its  large  and  proper  sense,  it  is 
a  contradiction  to  the  rule,  to  intend  that  the  remainder  to  the  heirs  shall 
operate  by  purchase,  and  such  intent  is  not  lawful ;  so  that  it  is  incumbent  ou 
those  who  oppose  this  application  of  the  rule,  to  show,  that  the  word  heirs  is 
used  in  a  qualified  sense,  and  intended  merely  to  describe  certain  persons,  who 
at  the  death  of  the  tenant  for  life,  may  answer  that  description,  and  to  give 
a  succession  of  heirs  to  them ;  this  being  shown,  the  rule,  he  says,  no  louder 
applies.     But  nothing  less   than  its  appearing,  that  by  the  heirs  of  the  body 

or 


377.  a.]  Of  Warrantie.      L.  3.  C.  13.  Sect.  719. 

may  be  put :  but  it  is  dangerous  to  use  them  in  conveyances, 
for  great  inconveniences  may  arise  thereupon ;  tor  if  such  a 
tenant  in  tayle  hath  issue  divers  sons,  and  they  have  issue  divers 
daughters,  and  likewise  if  tenant  in  tayle  hath  issue  divers  daugh- 
ters, 

or  heirs  general,  the  whole  line  and  succession  of  heirs  to  the  tenant  for  life, 
or,  in  other  words,  the  whole  of  his  inheritable  blood,  was  not  meant,  can  de- 
liver the  case  from  the  rule.  He  says,  that  the  genuine  rule  in  Shelley's  case 
is  part  of  an  ancient  policy  of  the  law  to  guard  against  the  creation  of  estates 
of  inheritance,  with  qualities,  incidents,  or  restrictions,  foreign  to  their  nature. 
Thus  it  is  one  of  the  properties  of  an  estate  in  fee  simple,  that  it  may  be  ali- 
enated by  the  party  seised,  so  that  a  condition  not  to  alien  is  void  at  law.  Thus 
curtesy  and  dower  are  incidents  to  estates  of  inheritance,  and  inseparably 
annexed  to  them ;  that  these  known  examples  of  incidents,  inseparable  from 
inheritance,  lead  to  a  discovery  of  a  foundation  for  the  rule,  which  in  a 
moment  renders  it  paramount  to  and  independent  of  private  intention.  It  is 
one  branch  of  a  policy  of  law,  adopted  to  prevent  annexing  to  a  real  descent 
the  qualities  and  properties  of  a  purchase,  and  so  is  calculated  to  render  im- 
possible the  creation  of  an  amphibious  species  of  inheritance  ;  that  is,  an  estate 
of  freehold,  with  a  perpetual  succession  to  heirs,  without  the  other  properties 
of  inheritance;  in  other  words,  an  inheritance  in  the  first  ancestor,  with  the 
privilege  of  vesting  in  the  heirs  by  purchase  the  succession  of  one  to  another, 
without  the  legal  effects  of  a  descent,  a  compound  of  descent,  and  purchase. — Such 
a  commixture  would,  he  says,  have  put  an  end  to  all  those  lines  of  distinction 
hy  which  we  so  easily  and  certainly  discriminate  inheritances  from  mere  estates 
of  freehold.  It  would  have  been  a  continual  source  of  fraud  upon  feudal 
tenure.  When  the  heir  came  into  the  tenure  by  descent,  the  lord  was  entitled 
to  those  grand  fruits  of  military  tenure,  wardship  and  marriage  but  if  he  took 
by  purchase,  only  the  trifling  acknowledgment  of  relief  was  due  to  the  lord. 
If  the  heir  were  allowed  to  succeed  by  purchase,  it  would  defeat  the  specialty 
creditors  of  the  ancestor ;  it  would  have  suspended  all  actions  for  the  inheri- 
tance of  land.  If  private  intention  had  been  permitted  to  annex  to  real 
heirship  the  contradiction  of  taking  by  purchase,  what  principle  of  our  law 
would  have  remained  to  resist  stripping  the  title  by  succession  of  all  the  other 
eifccts  and  consequences  legally  appropriated  to  it?  "Why  might  it  not  have 
given  to  purchase  the  qualities  of  descent?  It  is  a  positive  rule  of  our  law, 
that  a  man  cannot  raise  a  fee  simple  to  his  own  right  heirs  as  purchasers,  either 
by  legal  conveyance,  or  by  conveyances  to  uses.  By  this  it  is  meant,  that 
where" the  ancestor  wills  that  at  his  death,  his  heirs  shall,  by  gift  from  him, 
come  to  that  very  inheritance  which  the  law  of  descent  and  succession  throws 
upon  them,  it  is  construed  as  a  vain  and  fruitless  attempt  to  give  that  to  the 
heirs  which  the  law  vests  in  them.  It  amounts  to  a  prohibition  upon  the 
ancestor  against  making  his  heirs  purchasers,  by  giving  at  his  death  what  the 
law  confers  without  his  aid.  But  this  rule  applies  only  to  the  acts  of  the 
ancestor ;  it  was  therefore  requisite  to  have  a  like  barrier  as  to  acts  between 
persons  not  standing  in  that  relation  towards  each  other.  This  is  affected  by 
t  le  rule  in  Shelley'c  case.  Thus  explained,  says  he,  the  rule  in  Shelley's  case 
cm  no  longer  be  treated  as  a  medium  for  discovering  the  testator's  intention. 
The  ordinary  rules  for  the  interpretation  of  deeds  should  be  first  resorted 
to.  When  it  is  once  settled  that  the  donor  or  testator  has  used  words  of  inhe- 
ritance, according  to  their  legal  import;  has  applied  them  intentionally  to 
comprise  the  whole  line  of  heirs  to  the  tenant  for  life;  has  made  him  the 
terminus,  by  reference  to  whom  the  succession  is  to  be  regulated ;  then  the 
rule  in  Shelley's  case  applies,  and  the  heir  shall  not  take  by  purchase.  But  if 
it  shall  be  decided  that  the  testator  or  donor  did  not  mean  to  involve  the  whole 
line  of  heirs  to  the  tenant  for  life;    did  not  mean  to  engraft  a  succession  on 

his 


L.  3.  C.  13.  Sect.  719.    Of  Warrantie.  [377.  a* 

ters,  and  each  of  them  hath  issue  sonnes,  none  of  the  daughters 
of  the  sons,  nor  the  sounes  of  the  daughters,  shall  ever  inherite 
to  either  of  the  said  estates  taylc  :  and  so  it  is  of  the  issues  of  the 
issues,  for  that  (as  hath  beene  said)  the  issues  inheritable  must 

make 

his  estate,  and  to  make  him  the  ancestor  or  terminus;  but  instead  of  this, 
intended  to  use  the  \vord  heirs  in  a  limited,  restrictive,  and  qualified  sense ; 
intended  to  point  at  that  individual  person  who  should  be  the  heir  at  the  mo- 
ment of  the  ancestor's  decease ;  intended  to  give  a  distinct  estate  of  freehold 
to  such  single  heir,  and  to  make  his  or  her  estate  of  freehold  the  ground- 
work of  a  succession  of  heirs;  to  construe  him  or  her  the  ancestor,  terminus, 
or  stock,  for  the  succession  to  take  its  course  from  ; — in  every  one  of  these 
cases,  the  premises  are  wanting  upon  which  the  rule  in  Shelley's  case  inter- 
poses its  authority,  and  the  rule  therefore  becomes  extraneous  matter. 

III.  Previously  to  Mr.  Hargrave's  publication,  the  rule  in  question  had  been 
discussed  with  infinite  learning  and  ability,  by  Mr.  Fmriie,  in  his  Essay  on 
Contingent  Remainders.  In  this  justly  celebrated  work,  Mr.  Fearne  observes, 
that  the  rule  in  Shelley's  case  is  supposed  to  have  been  originally  introduced 
to  prevent  frauds  upon  the  tenure;  and  that  if  such  a  limitation  had  been  con- 
strued a  contingent  remainder,  the  ancestor  might,  in  many  cases,  have  de- 
stroyed it  for  his  own  benefit ;  if  not,  he  might  have  let  it  remain  to  his  heirs 
in  as,  beneficial  a  manner  as  it  had  descended  to  him,  at  the  same  time  that 
the  lord  would  have  been  deprived  of  those  fruits  of  the  tenure  which  would 
have  accrued  to  him  upon  a  descent.  He  then  minutely  and  accurately  ex- 
amines all  the  cases  upon  the  subject,  which  had  come  before  the  courts  of 
law  and  equity,  and  investigates  very  fully  the  principles  upon  which  they 
were  determined.  He  says,  "  that  in  the  case  of  Perriu  and  Blake,  the  quea- 
"  tion  is  not  whether  the  words,  heirs  of  the  hody,  may  not,  under  certain  cir- 
"  cumstances,  be  taken  as  words  of  purchase ;  but  whether  those  words, 
"  standing  perfect,  independent  and  unexplained,  and  preceded  by  a  limitation 
*'  of  the  legal  freehold  to  the  ancestor  in  the  same  will,  have  ever  been  con- 
*'  strued  as  words  of  purchase."  To  this  he  replies,  "  that  not  one  of  the  cases, 
"  till  that  of  Perrin  and  Blake,  can  fairly  be  urged  in  support  of  an  afl[irmative 
"  answer  to  that  question." 

IV.  "  Our  attention,"  (to  adopt  Mr.  Fearne's  masterly  statement  of  it),  "  is 
''  next  called  to  some  observatious  of  very  high  authority,  upon  the  applica- 
<'  tion  of  the  rule.  Lord  chancellor  Thurlow,  in  the  case  of  Jones  v.  Morgan, 
"  1  Bro.  Cha.  Ca.  206.  laid  down  some  strong-featured  positions,  describing 
"  the  outlines  of  a  distinction  applicable  to  all  the  cases  in  which  that  i-ule 
"  had  been,  or  can  be  agitated.  His  lordship  drew  an  inference  from  all  the 
"  cases,  that,  where  the  estate  is  so  given,  that  after  the  limitation  to  the  first 
"  taker  it  is  to  go  to  every  person  who  can  claim  as  heir  to  the  first  taker, 
"■  the  word  "  heirs"  must  be  words  of  limitation  : — That  all  heirs,  taking  as 
"  heirs,  must  take  by  descent.  In  cases,  he  said,  where  he  could  bring  it  to 
"  the  point  that  the  testator,  by  the  word  "heirs"  meant  1st,  2d,  3d,  and 
"other  sons,  there  he  would  change  the  words  of  the  will;  but,  in  the  case 
"  before  him  he  thouglit  the  word  "heirs"  was  the  very  thing  meant. — Sup- 
"  pose,  said  his  lordship,  William  had  had  a  son,  which  son  had  had  a  son  and 
"  died,  leaving  sir  William  the  testator,  the  eldest  son  of  tlie  son  would  have 
"  been  heir.  If  there  had  been  a  title,  he  would  have  taken  it;  but  the  estate, 
"  if  the  words  had  been  words  of  purchase,  (that  is,  if  they  were  construed  to 
"  import  limitations  to  the  first  and  other  sons  of  William  successively  in  tail 
"  male),  must  have  gone  to  the  second  son ;  the  devise  to  the  first  son  being  a 

"  lapsed 


377.  a.]  Of  Warrantie.     L.  3.  C.  13.  Sect.  719. 

make  their  clayme  eyther  onely  by  males,  or  oaely  by  females, 
so  as  the  females  of  the  males,  or  males  of  the  females,  are  wholly 
excluded  to  bee  inheritable  to  eyther  of  the  said  estates  tayle ; 
but  where  the  first  limitation  is  to  the  heires  males,  let  the  limi- 
tation 

"lapsed  devise,  like  the  case  of  White  &,  White;  but  sir  William  Morgan 
"  meant  the  estate  to  go  to  whoever  should  be  heir." 

"  The  chancellor  thought  the  argument  immaterial,  that  the  testator  meant 
"  the  first  estate  to  be  an  estate  for  life.  He  took  it,  that,  in  all  cases,  the 
"  testator  did  mean  so.  He  rested  it  upon  what  the  testator  meant  afterwards; 
"  — if  he  meant  that  every  other  person,  who  should  be  heir,  should  take, 
"  he  then  meant,  what  the  law  would  not  suffer  him  to  give,  or  the  heir  to  take, 
"  as  a  purchaser. — His  lordship  said,  that  in  conversing  with  a  great  authority, 
"he  asked,  what  would  become,  in  the  case  stated,  of  the  grandson;  that 
"  the  answer  was,  he  should  take  as  heir.  Lord  Thurlow  observed  he  knew 
"  he  might;  but  then  he  must  take  by  discent.  All  possible  heirs,  he  said, 
"  must  take  as  heirs,  and  not  as  purchasers :  that  in  all  cases  where  the  limi- 
"  tation  is  of  an  estate  of  freehold  to  a  man,  and  afterwards  to  his  heirs,  &c. 
**  (whether  general  or  special),  so  as  to  give  it  to  the  heirs  as  a  denomination 
"  or  class,  the  heirs  shall  be  in  by  descent,  and  not  by  purchase.  And  that 
"  the  case  stated  by  Anderson  in  Shelley's  case  of  a  limitation  to  the  use  of  A. 
"  for  life,  remainder  to  the  use  of  his  heirs  and  of  their  heirs  female,  was  the 
"  only  one  to  the  contrary,  and  in  that  case  the  word  "  heirs"  must  be  a 
"  description  of  the  persons,  in  order  to  let  in  the  limitation  to  the  heirs 
"  female." 

"■  Now" — continues  Mr.  Fearne, — "  if  the  inference  I  have  drawn  from  the 
"  very  operative  tendency  of  the  law  to  hereditary  descent,  in  its  mode  of 
"  approaching  it,  where  the  requisite  ground  for  its  perfect  accomplishment  is 
"  wanting,  be  just;  if,  from  such  premises,  unopposed  by  any  single  repugnant 
"  decision  or  judicial  opinion,  the  conclusion  that  the  capacity  of  an  heir  to 
"  take  the  inheritance  by  purchase,  so  as  to  transmit  it  through  the  same  line 
"as  by  descent,  is  confined  to  those  cases  only  where  the  ancestor  takes  no 
"  estate  of  freehold,  be  sufficiently  founded,  lord  Thurlow's  doctrine  embraces 
"  the  subject  to  the  full  extent  of  his  expression.  For  then,  wherever  the 
"  ancestor  takes  the  freehold,  the  inheritance  will  not  go  to  all  the  heirs,  &e. 
"  in  the  course  of  inheritable  succession,  unless  by  an  actual  descent.  And 
"consequently,  if  after  the  fii-st  taker,  it  is  to  go  to  every  person  who  can 
"  claim  as  heir  to  him,  the  intended  succession  can  only  be  effectuated  by 
"  taking  the  words  "  heirs,"  &c.  as  words  of  limitation.  If  after  him  all  heirs, 
"  &c.  are  to  take  as  such,  that  is,  as  answering  that  description,  they  can  only 
"  take  by  descent.  If  the  law  will  not  admit  of  all  possible  heirs,  &c.  taking 
"  the  inheritance,  after  its  inception  by  a  freehold  in  the  ancestor,  otherwise 
"  than  by  descent,  it  follows,  that,  wherever  the  limitation  to  the  heirs,  &c. 
"  after  a  freehold  to  the  ancestor,  is  admitted  to  reach  the  whole  denomina- 
"  tion  or  class  of  heirs  described,  they  must  take  by  descent  and  not  by 
"  purchase." 

V.  The  very  masterly  discussions  referred  to  in  this  note,  will  make  the 
reader  fully  acquainted  with  the  general  merits  of  the  case  in  question,  and  of 
the  several  points  of  legal  learning,  upon  the  discussion  of  which  it  either 
immediately  or  incidentally  depends.  But  as  the  subject  is  necessarily  of  a 
very  abstruse  and  intricate  nature,  and  the  arguments  used  in  support  of  the 
different  opinions  respecting  it  are  necessarily  complicated  and  interwoven  with 
one  another,  the  following  discrimination  of  tlie  leading  pointii,\x'^on  which  the 
decision  of  the  case  must  ultimately  turn,  will,  perhaps,  be  useful  to  those 
who  wish  to  obtain  an  accurate  knowledge  of  the  doctrine  in  dispute. 

V.  1.  Let 


L.  3.  C.  13.  Sect.  719.         Of  Warrantie.  [377.  a. 

tation  be,  for  default  of  such  isf^ue,  to  the  heires  of  the  bodie  of 
the  donee,  and  then  all  the  issues,  be  they  females  of  males,  or 
males  of  females,  are  inheritable. 

If 

V.  1.  Let  us  first  suppose,  that  after  a  devise  to  a  man  for  life,  and  a  sub- 
sequent devise  to  the  heirs  of  his  body,  the  testator  in  express  words  declares 
it  to  be  his  intention,  that,  by  the  devises  in  question  he  means  to  give  the 
ancestor  an  estate  for  his  life  only,  and  to  give  an  estate  in  fee  by  purchase  to 
his  heirs :  Is  the  rule  in  question  of  that  very  rigid  and  forcible  nature  as  to 
be  unaffected  and  uncontnUed  hy  these  express  icords?  If  the  answer  to  this 
question  is,  that  the  express  declaration  of  the  testator  will,  in  this  case,  con- 
trol the  legal  operation  of  the  words,  heirs  of  the  body,  the  next  question  is, 
Can  any  words  short  of  an  express  declaration  have  this  eflTect  ?  or,  in  other 
language,  Can  that  rule  be  controlled  hi/  words  of  ImpJlration  ?  If  the  answer  is 
in  the  affirmative,  the  next  inquiry  is.  Whether  to  form  such  an  implication 
as  will  control  the  rule,  it  is  sufficient  that  it  appears  to  be  the  testator's  in- 
tention that  the  ancestor  should  take  an  estate  for  his  life  only?  Or  must  it 
also  appear  to  be  his  intention  that  the  heirs  should  take,  not  as  descendants, 
but  as  purchasers  ?  Must  it  further  appear,  hoio  or  what  estates  he  intends 
the  heirs  to  take  ?  And  how  and  ^chat  estates  may  the  heir  take  by  the  law 
of  England,  his  ancestor  taking  by  the  same  instrument  an  estate  for  his  life 
only  ? 

Such,  perhaps,  will  be  the  process  of  inquiry,  if  it  is  admitted,  that  there 
are  cases  where,  in  devises  of  this  nature,  the  heirs  will  take  by  purchase  :  but 
if  that  is  not  admitted;  if  it  is  asserted,  that  where  a  testator  has  once  devised 
to  a  man  for  life,  and  afterwards  to  the  heirs  of  his  body,  no  other  words,  how- 
ever positive  and  express,  shall  control  the  legal  operation  of  the  words,  heirs  of 
his  body ; 

V.  2.  It  will  then  remain  to  inquire  into  the  ground  of  the  supposed  inflexi- 
bility and  rigidity  of  the  rule. — Is  it  that  it  is  a;/ainst  the  laio  of  the  land,  that 
lands  should  be  conveyed  to  the  ancestor  for  life  with  such  estate  or  estates 
in  remainder  to  the  heirs  of  his  body,  as  those  heirs  must  be  supposed  to  take, 
if  they  take  as  purchasers? — To  resolve  this  question  with  accuracy,  it  should 
first  be  settled  what  estate  or  estates  the  heirs  of  the  body  would  take  under 
this  construction ;  and  then  it  should  be  supposed  thar,  such  estate  or  estates 
are  devised  by  the  most  accurate  and  scientific  legal  expressions  :  if  devises  so 
worded  would  be  held  contrary  to  law,  the  necessary  conclusion  is,  that  the 
object  intended  to  be  eflFected  by  the  testator  is  against.law. 

V.  3.  If  it  appears  that  such  estate  or  estates  are  not  contrary  to  the  law, 
but  it  still  is  contended  that  a  devise  to  one  for  life,  and  after  his  decease  to 
the  heirs  of  his  body,  shall  make  the  heirs  take  by  descent,  contrary  to  the 
testator's  intention,  the  only  remaining  ground  to  support  that  conclusion  is,^ 
that  to  make  the  heirs  take  by  descent  in  devises  of  this  nature,  is  a  point  of 
construction  so  fixedly  and  unalterably  settled  by  judicial  determination,  that 
it  is  not  now  in  the  breast  of  any  court  to  deviate  from  it.  By  investigating 
the  rule  in  question  under  the  above  heads  of  inquiry,  a  regular  and  distinct 
view  may,  it  is  conceived,  be  obtained  of  the  different  points  of  law  which 
relate  to  it,  and  of  the  different  grounds  upon  Avhich  an  opinion  upon  it  may 
be  framed. — It  is  greatly  to  be  lamented  that  there  should  be  so  much  uncer- 
tainty and  difficulty  in  the  application  of  a  rule  of  law,  to  which  resort  must 
be  so  often  had  on  the  construction  of  wills.  All  parties  agree  that  the  rule 
has  an  existence ;  but,  from  the  liberality  which  is  allowed  in  the  construction 
of  wills,  it  has  been  contended  that  it  does  not  extend  to  those  devises  to 
which  it  cannot  be  applied,  without  defeating  the  intention  of  the  testator.  It 
is  certain  that  no  rule  of  law  has  a  more  ancient  origin,  or  is  more  generally 
established,  than  that  if  a  testator  expresses  his  intention  defectively,  either 

by 


377.  a.J  Of  Warrantie.  L.  3.  C.  13.  Sect.  719. 

If  a  man  give  lands  to  a  man,  to  have  and  to  hold  to  him  and  the 
heires  males  of  his  bodie,  and  to  him  and  to  the  beires  females  of 
his  bodie,  the  estate  to  the  heires  females  is  in  remajnder,  and 
the  daughters  shall  not  iuherite  any  part,  as  long  as  there  is  issue 

n>ale; 

by  not  using  technical  and  artificial  terms,  or  by  using  them  improperly,  yet 
if  his  intention  can  be  collected  from  his  will,  the  law,  however  defective  his 
language  may  be,  will  construe  his  words  according  to  his  intention  ;  and  if 
the  object  of  it  is  warranted  by  the  established  rules  of  law  and  equity,  will 
admit  its  full  operation  and  effect.  It  is  equally  certain,  on  the  other  hand, 
that  if  the  testator's  intention  appears  to  be  to  effect  that,  which  the  rules  of 
law  and  equity  do  not  admit,  neither  the  courts  of  law  nor  the  courts  of  equity 
can  allow  its  operation.  The  first  thing,  therefore,  to  be  ascertained  is,  what 
the  object  of  the  testator  is ;  the  next,  whether  it  is  such  as  the  rules  of  law 
and  equity  admit. 

V.  4.  To  determine  the  last  point,  as  soon  as  it  is  settled  what  the  testator' .■» 
intention  is,  let  him  be  supposed  to  have  expressed  it,  not  in  the  words  actually 
made  use  of  by  him,  but  in  the  most  accurate  and  scientific  language.  If, 
when  so  expressed,  its  operation  will  be  allowed,  both  at  law  and  in  equity,  it 
must  be  admitted,  on  all  hands,  that  it  should  have  its  operation  and  effect, 
notwithstanding  any  inaccuracy  or  impropriety  used  by  the  testator  in  his 
method  of  expressing  it.  But  if,  when  expressed  in  artificial  and  scientific 
language,  the  law  will  not  give  it  effect,  it  must  equally  be  admitted,  that  it  is 
no  longer  in  the  power  of  the  courts  to  give  it  an  operation ;  the  fault  of  the 
testator's  will  being,  not  that  he  has  expressed  his  intention  inaccurately,  but 
that  the  object  of  his  intention  is  unlawful. 

V.  5.  To  apply  this  reasoning  to  the  case  of  Perrin  v.  Blake,  what  was  the 
testator's  intention  ?  Supposing  the  heirs  in  that  case  to  take  by  purchase, 
there  are,  it  is  conceived,  but  three  constructions  to  be  put  upon  such  a  devise. 
The /rs^  is,  to  suppase,  that  the  devise  to  the  heirs  of  the  body  of  the  ances- 
tor, to  whom  the  life  estate  is  limited,  gives  estates  to  his  sons  successively 
in  tail,  with  remainders  over  in  tail  to  his  daughters  as  tenants  in  common. 
Devises  of  this  nature  are,  unquestionably,  conformable  to  law.  They  are  the 
modifications  of  property  most  frequently  introduced  in  the  settlements  of  real 
estates.  It  follows,  that  if  the  words  of  the  testator  are  construed  in  this  sense, 
they  are  unobjectionable  in  point  of  law.  But  the  courts  of  law  have  not  thought 
themselves  warranted  to  construe  them  in  this  sense ;  this  construction,  there- 
fore, must  be  laid  aside. 

The  second  construction  is,  to  suppose,  that  the  testator's  intention  is  to  give 
the  ancestor  an  estate  of  freehold,  and  to  vest  the  inheritance  in  the  person  who 
at  the  time  of  the  ancestor's  decease,  should  be  the  heir  of  his  body,  and  to 
make  that  person  the  stock  of  the  inheritance.  It  must  be  admitted,  that  this 
is  perfectly  lawful ;  and  there  is  no  doubt  but  a  disposition  of  this  nature,  if 
framed  in  proper  language,  would  be  good,  not  only  in  a  will,  but  in  a  deed. 
The  question  then  will  be,  Whether  that  was  the  intention  of  the  testator  ? 
It  is  obvious,  that  by  the  words  heirs  of  the  body,  the  testator  means  to  com- 
prehend all  the  heirs  of  the  body  of  the  devisee ;  but  if  the  construction  here 
contended  for  be  admitted,  only  a  particular  series  or  line  of  such  heirs  will 
be  admitted.  None  will  be  admitted  but  the  person  who  happens  at  the  time 
of  the  ancestor's  decease  to  be  the  heir  of  his  body,  and  the  heirs  of  the  body 
of  that' person;  all  the  other  heirs  of  the  body  of  the  ancestor  will  be  utterly 
excluded.  Thus,  supposing  him  to  have  several  sons,  the  eldest  son  would,  at 
the  time  of  the  testator's  decease,  answer  to  the  description  of  heir  of  his  body; 
he,  therefore,  would  take  an  estate  by  purchase ;  he  would  be  the  stock  of  the 
inheritance,  and  from  him  the  lands  would  descend  upon  all  his  issue.     But  the 

devise 


L.  3.  C.  13.  Sect.  719.      Of  Warrantie.  [377.  a. 

male;  for  the  estate  to  the  heires  males  is  first  limited,  and  shall 
be  first  served ;  and  it  is  as  much  to  say,  and  after  to  the  heires 
femaleS;  and  males  in  construction  of  law  arc  to  be  preferred. 

Sect. 


devise  would  reach  no  farther;  it  would  not  comprehend  the  other  sons  of  the 
ancestor,  or  their  issue.  Thus,  if  this  construction  should  be  received,  the 
intention  of  the  testator  will,  to  a  great  degree,  be  absolutely  defeated.  If 
there  are  no  ulterior  limitations  or  devises  after  the  devise  to  the  heires  of  the 
body  of  the  tenant  for  life,  the  reversion  in  fee  will  descend  on  the  eldest  son ; 
and  he  may,  consequently,  dispose  of  it  from  his  brothers  and  their  issue.  If 
there  are  any  such  ulterior  limitations  or  devises,  the  persons  claiming  under 
them  would  take  before,  and  to  the  total  rejection  of  the  other  brothers  and 
their  issue.  Of  the  second  construction,  therefore,  must  be  repeated  ^yhat  was 
said  of  the  first,  that  it  is  unobjectionable,  in  point  of  law,  but  that  it  is  not 
conformable  to  the  intention  of  the  testator. 

The  third  construction  is,  to  suppose,  that  the  inheritance  will  first  vest  in  the 
person  answering,  at  the  time  of  the  decease  of  the  ancestor,  to  the  description 
of  heir  of  his  body;  and  that,  on  failure  of  issue  of  that  person,  it  will  vest  in 
him  who  answers  that  description  at  the  time  of  such  failure  of  issue,  and  so 
on,  while  there  are  any  such  heirs  remaining.    This  construction  is  conformable 
in  some  respects  to  the  case  of  John  de  Mandeville,  mentioned  by  sir  Edward 
Coke,  ante  26.  b.  (and  see  the  note  in  p.  505,  of  Mr.  Douglas's^ Reports).  The 
question  then  is.  Whether  there  is  any  thing  unlawful  in  this  intention  ?     To 
ascertain  this,  let  it  be  tried  by  the  test  above  mentioned,  that  is,  let  us  suppose 
it  expressed  in  the  most  accurate  and  technical  language.     This  will  give  the 
first  son  or  his  issue,  at  the  time  of  the  ancestor's  decease,  an  estate  tail;  and 
upon  failure  of  that  line  of  issue,  the  lands  will  vest  for  an  estate  tail  in  the 
person  who,  at  the  time  of  the  failure  of  the  issue  of  the  first-taking  heir,  will 
answer  the  description  of  heir  of  the  body  of  the  tenant  for  life,  and  so  on  till 
all  the  heirs  of  his  body,  and  all  their  issue,  are  exhausted. — It  is  obvious,  that 
a  limitation  of  this  nature  difi'ers  materially  from  the  limitations  adopted  in  the 
first  construction,  viz.  to  the  sons  successively  in  tail  male,  with  remainder  to 
the  daughters;  for  in  that  case  the  estate  vests  immediately  in  the  first  taker, 
and  the  other  sons,  and  all  the  daughters,  take  vested  remainders  in  tail.    But, 
according  to  the  construction  we  are  now  speaking  of,  all,  after  the  first  taker, 
must  be  considered  as  taking,  if  the  expression  may  be  allowed,  quasi  per  for- 
man  doni,  conformably  to  the  construction  put  on  the  limitation  in  Mandeville's 
case.     Supposing  even  that  they  take  by  purchase,  all  the  estates  after  that  of 
the  first  taker  must  be  contingent.    In  fact,  it  is  not  very  easy  to  ascertain  how 
they  would  take,  and  it  might  be  found  difiicult  to  frame  the  language  of  the 
limitation.    But  certainly  none  of  the  other  children,  or  their  heirs,  if  this  con- 
struction should  be  received,  would  take  vested  estates  during  the  life  of  the  first 
taker,  or  the  continuance  of  issue  of  his  body:  for,  till  the  events  in  question 
happened,  it  must  be  uncertain  who,  at  the  particuhir  times  in  question,  would 
answer  to  the  description  of  heir  of  the  body  of  the  tenant  for  life ;  whereas, 
according  to  the  first  construction,  all  the  children  would  answer  the  description 
under  which  they  are  designed,  immediately  upon  their  respective  births.    Such 
is  the  effect  of  this  third  construction. — Is  there  any  thing  in  the  devise,  con- 
struing it  in  this  manner,  and  supposing  it  to  be  properly  and  accurately  framed, 
that  combats  with  any  known  rule  of  law?  It  is  certain  that  such  a  limitation 
would  be  good,  if  the  life  estate,  instead  of  being  limited  to  the  ancestor  of  the 
persons  to  whom  the  inheritance  is  afterwards  limited,  were  limited  to  a  stran- 
ger; as  in  the  common  case  of  a  devise  to  A.  for  life,  remainder  to  the  right 
heirs,  or  the  heirs  of  the  body  of  7.  S. — Why  should  its  being  a  devise  to  the 
ancestor  make  a  difference  !*     It  may  even  be  contended,  that  a  limitation  and 

devise 


377.  b.]  Of  Warrantie.      L.  3.  C.  13.  Sect.  720. 


(9  Rep.  127.)  JS@"  Sect  720  r377i 

(Plowd.  403.a.)  Oev^U    1  Z^V.  O  /  /  . 

j^LSO,  I  have  heard  say^  that  in  the  time  of  king  Richard  the  second, 

there  ivas  a  justice  of  the  common  place,  dwelling  in  Kent,  called  Ri- 

chel,  zvho  had  issue  divers  sonnes,  and  his  intent  tvas,  that  his  eldest  sonne 

should  have  certaine  lands  and  tenemeiits  to  him,  and  to  the  heires  of  his 

bodie 


devise  of  this  nature  have  heen  allowed  in  equity.  In  the  case  of  Tipping  v. 
Cosin,  Carth.  272.  there  was  a  limitation,  and  in  lady  Jones  v.  lord  Say  and 
Sele,  8  Vin.  262.  there  was  a  devise  of  a  trust  estate  to  the  ancestor  for  life, 
with  a  legal  remainder  after  his  decease  to  the  heirs  of  his  body.  In  both  cases 
it  was  admitted,  that  on  account  of  the  different  qualities  of  their  estates,  the 
freehold  being  equitable,  and  the  inheritance  legal,  they  did  not  coalesce  so  as 
to  be  within  the  rule  in  Shelley's  case;  but  it  was  allowed  to  be  a  good  remain- 
der in  tail,  in  the  heirs  of  the  body  of  the  ancestor;  and  in  the  former  of  these 
cases  the  verdict  was  for  the  person  claiming  the  remainder.  It  may  be  an- 
swered (and  certainly  with  great  appearance  of  reason),  that,  on  account  of  the 
different  nature  and  quality  of  the  estates,  the  mischiefs  intended  to  be  obviated 
by  the  rule  in  Shelley's  case  could  not  follow  from  admitting  the  heirs  to  take 
in  these  cases  by  purchase.  Considering  it  with  respect  to  the  feudal  princi- 
ples, which  are  supposed  to  have  given  occasion  to  the  rule,  the  lord  would  not 
have  lost  the  fruits  of  his  tenure,  nor  would  the  fee  have  been  put  into  abey- 
ance. This  case,  therefore,  proves  nothing  in  favour  of  the  legality  of  the 
estates  to  be  raised  by  the  construction  here  contended  for.  This  point  is 
exhausted  by  Mr.  Hargrave's  treatise  upon  it.  If  the  reader  be  convinced  by 
it  that  the  estates  to  be  raised  by  this  third  construction  are  not  such  as  the 
law  admits,  it  follows,  that  supposing  the  devise  in  question  to  operate  so  as  to 
give  the  heirs  an  estate  by  purchase,  it  must  be  construed  in  one  of  the  two 
former  modes.  Now  these  modes  are  not  reconcileable  with  what  is  acknow- 
ledged to  be  the  general  scope  and  object  of  the  testator's  intention.  The  con- 
sequence is,  that  the  devise  must  be  left  to  its  legal  operation,  and  the  heir 
must  take  by  descent. 

V.  6.  But  if  the  reader  should  be  of  opinion  that  the  estates  which,  if  the 
third  construction  is  admitted,  will  be  created  by  the  testator's  will,  are  such 
as  the  law  allows,  still  there  will  remain  a  formidable  objection  to  the  admission 
of  that  construction.  It  will  appear,  that  by  a  series  of  adjudications,  from 
the  18  Ed.  II.  to  the  case  of  Coulson  v.  Coulson,  17  Geo'.  II.  inclusively,  de- 
vises of  the  nature  in  question  have  been  construed  to  vest  the  inheritance  in  the 
ancestor.  Admitting  therefore  that  the  reason  or  foundation  of  the  construc- 
tion in  question  is  not  now  discoverable,  there  still  is  great  reason  to  contend 
that  it  is  binding  on  the  courts.  This  is  by  no  means  peculiar  to  the  rule  in 
Shelley's  case.  There  are  many  other  rules  of  construction  received  by  the 
courts,  which  are  arbitrary,  and  some  of  them  not  reconcileable  to  plain  reason. 
Still,  being  adopted  as  rules  of  construction,  the  courts  (sometimes  even  with 
an  avowed  reluctance)  consider  themselves  to  be  bound  to  submit  to  them. 

VI.  It  remains  to  observe,  that  tJie  suggestions  here  stibmitted  to  the  reader, 
are  intended  to  apply  only  to  the  devises  of  legal  estates,  and  to  those  devises  only 
in  which  the  argument  to  except  them  from  the  rule  in  Shelley's  case  depends 
at  the  most  on  the  two  following  circumstances :  1st,  that  it  evidently  appears 

to 


L.  3.  C.  13.  Sect.  720.     Of  Warrantie.  [377.  b. 

hodie  begotten;  andfor  default  of  issue,  theremainder  to  the  secondsonne 
^c.  and  so  to  the  third  sonne,  ^c.  and  because  he  would  that  none  of  Ids 
sons  shoidd  alien,  or  make  warrantie  to  bar  or  hurt  the  others  that  should  be 
'  in  the  remainder,  ^e.  he  causeth  anindenture  to  bemadeto  this  effect,  viz. 
that  the  lands  and  tenements  were  given  to  his  eldest  son  upon  such  con- 
dition, that  if  the  eldest  son  alien  in  fee,  or  in  fee  taile,  cj-c.  or  if  any  of  his 
sons  alien,Sj-c.  that  then  their  estate  should  cease  and  be  void,  and  that  then 
the  same  lands  and  tenements  immediately  should  remain  to  the  second soji 
and  to  the  heires  of  his  body  begotten  *et  sic  ultra,  the  remainder  to  his 
other  sonnes  and  livery  of  seisin  was  made  accordingly. 

"  T  HA  VE  heard  say,  &€."     Those  things  that  one  hath  by  21  11.^6.  f.  33. 
credible  hearesay,  by  the  example  of  our  author,  are  worthy  ^[^  Anthony* 
of  observation.     This  invention  devised  by  justice  Ricliel  in  the  Mildmaye's 
reigne  of  king  Richard  the  second,  who  was  an  Irishman  borne,  case. 
and  the  like  by  Thirning,  chiefe-justice  in  the  reigne  of  Henry 
the  fourth,  were  both  full  of  imperfections ;  for  Nihil  sinml  in-  (1  Rep.  84.) 
ventum  est  et  perfectum,  and  Saepe  viatorem  nova  iion  vetus  orhita 
fallit:  and  thesefore  new  inventions  in  assurances  are  dangerous. 
And  hereby  it  may  appeare,  that  it  is  not  safe  for  any  man  (be 

he 

*  this  being  upon  the  same  condition,  shoidd  remain  to  the  third  son,  and  to 

scilicet,  (hat  if  the  second  son  alien,  <&c.  the  heirs  of  his  hody  begotten,  added  iu 

that  then  his  estate  shoidd  cease,  and  L.  and  M.  and  Roh. 
that  then  the  same  lands  and  tenements 


to  be  the  testator's  intention  to  give  the  ancestor  an  estate  for  his  life  ouly : 
and  2dly,  that  it  also  evidently  appears  to  be  his  intention  that  the  heires,  of 
his  body  should  take  by  purchase.  If  the  testator's  intention  appears  to  be  to 
give  the  ancestor  an  estate  for  life  only,  and  to  give  an  estate  by  purchase  to 
the  heires  of  his  body;  and  if,  besides  (his,  his  intention  is,  that  by  the  devise  to 
the  heirs  the  inheritance  should  vest  in  that  individual  heir  who,  at  the  time  of 
the  decease  of  the  tenant  for  life,  shall  be  the  heir  of  his  body,  and  the  heirs  of 
the  body  of  that  person,  and  that  the  devise  should  reach  no  farther;  or  his 
intention  is,  that  the  inheritance  should  descend  upon  the  sons  of  the  tenant  for 
life  successively  in  tail,  with  or  without  remainders  to  the  daughters;  and  this 
ulterior  intention  appears //-om  any  o(her  par(  of  the  will  either  by  plain  decla- 
ration, or  clear  implication ;  then,  as  there  is  nothing  unlawful  in  this  disposi- 
tion of  his  property,  there  is  no  rule  of  law  or  equity  that  stands  in  the  way  of 
such  construction. — But  this  ulterior  construction  is  not  to  be  implied  from  the 
mere  circumstances  of  an  estate  for  life  only  being  given  to  the  ancestor,  and 
its  appearing  either  by  express  words  or  implication,  that  it  was  the  testator's 
intention  to  give  an  estate  by  purchase  to  the  heirs. — It  may  be  said  this  brings 
the  matter  to  as  much  uncertainty  as  attended  it  before  :  but  surely  that  is  not 
the  case.  Numberless  as  these  cases  respecting  the  point  in  question  are,  there 
are  few  indeed,  in  which  any  ground  for  this  ulterior  construction  of  the  words, 
"  heirs  of  the  body,"  occurs.  See  those  cited  by  Mr.  justice  Blackstone  in 
Mr.  Hargrave's  Tracts,  505,  50G. 

Since  the  first  publication  of  this  note,  all  the  learning  respecting  this  cele- 
brated rule  of  law,  particularly  with  a  view  to  its  application  to  decided  cases, 
and  to  those  which  occur,  or  are  likely  to  occur  on  it,  iu  practice,  has  been 
ably  collected  and  arranged  by  Mr.  Preston,  in  his  Succinct  view  of  the  Rule 
in,  Shelley's  Case. — [Note  329.] 


377.  b.  378.  a.]       Of  Warrantie.     L.  3.  C.  13.  Sect.  721. 

he  never  so  learned)  to  be  of  counsell  with  himselfe  in  his  owne 
case,  but  to  take  advice  of  other  great  and  learned  men. 

Non  prosunt  dominis  quae  prosunt  omnibus,  artes. 

And  the  reason  hereof  is,  in  suo  quisque  ncgotio  hahetior  est, 
qudm  in  alieno. 

[m]  And  the  same  judge  in  his  owne  name,  &c.  brought  an 
action  upon  his  case  against  others,  and  obtained  a  verdict  so  as 
the  right  of  the  cause  was  tried  on  his  side  ;  yet  for  that  upon 
his  owne  shewing  in  his  count  the  action  did  not  lye,  ex  assensu 
omnium  justiciar iomm  prcBter  querentem  Richel,  judgement  was 
given  against  him  ;  but  let  us  now  leave  this  judge  for  example 
to  others,  and  let  us  return  to  our  author. 


[m]  2  H.  4.  f.  11. 
in  Action  sur  le 


B^Sect.  721. 


[^l^-] 


J)  TIT  it  seemeth  by  reason,  that  all  such  remainders  in  the  forme  afore- 
said are  void  and  of  no  value,  and  that  for  three  causes.  One  cause 
is,  for  that  every  remainder  which  heginneth  by  a  deed,  it  behoveth  that 
the  re77iainder  be  in  him  to  lohom  the  remainder  is  entailed  by  force  of  the 
same  deed,  before  the  livery  of  seisin  is  made  to  him  which  shall  have  the 
freehold;  for  in  such  case  the  growing  and  the  being  of  the  remainder 
is  by  the  livery  of  seisin  to  him  that  shall  have  the  freehold,  and  such 
remainder  was  not  to  the  second  sonne  at  the  time  of  the  livery  of  seisin 
in  the  case  aforesaid,  ^c. 

HERE  our  author  is  of  opinion,  that  these  remainders  in  the 
forme  aforesaid,  are  void  and  of  no  value  for  three  causes. 


(Plowd.  25.  a. 
29.  a.  2  Cro. 
360.) 


[n]  7  R.  2. 

Scire  facias. 
(Ant.  354.  b.) 


(Cro.  Eliz.  360.) 

(2  Roll.  Abr. 

419.) 

[o]  32  H.  6. 

tit.  Feoffments 

&  Faits,  99. 

27  E.  3.  87. 

11  R.  2. 
Detinue,  46. 
2  H.  7.  13. 

12  H.  7.  27. 
12  E.  4.  2. 
21  H.  7.  11, 
30  Ass.  47. 


"  One  cause  is,  &c."  Here  hee  setteth  down  a  rule  concerning 
remainders,  viz.  every  remainder  which  eommenceth  by  a  deed 
ought  to  vest  in  him  to  whom  it  is  limited,  when  livery  of  seisin 
is  made  to  him  that  hath  the  particular  estate. 

First,  Littleton  saith  by  deed,  [«]  because  if  lands  bee  granted 
and  rendered  by  fine  for  life,  the  remainder  in  taile,  the  remain- 
der in  fee,  none  of  these  remainders  are  in  them  in  the  remain- 
der, untill  the  particular  estate  be  executed. 

Secondly,  that  the  remainder  bee  in  him,  &c.  at  the  time  of 
the  livery. — This  is  regularly  true,  but  yet  it  hath  divers  excep- 
tions. First,  unlesse  the  person  that  is  to  take  the  remainder  be 
not  in  rerum  naturd  :  \_o']  as  if  a  lease  for  life  be  made,  the  re- 
mainder to  the  right  heires  of  I.  >S'.  /.  >S^.  being  then  alive,  it 
sufficeth  that  the  inheritance  passeth  presently  out  of  thelessour, 
but  cannot  vest  in  the  heire  of  /.  S.  for  that  living  his  father  he 
is  not  in  rerum  naturd,  for  noji  est  hseres  vivenfis  ;  so  as  the  re- 
mainder is  good  upon  this  contingent,  viz.  if  /.  >S'.  die  during  the 
life  of  the  lessee. 

38  E.  3.  26. 


7  H.  4.  23.     11  H.  4.  74.     18  H.  8.  3.     27  H.  8.  42. 
6  R.  2.  Qu.  Jur.  clam.  20.     (1  Rep.  94.) 

[p]  PI.  Com  [p]  And  so  it  is  if  a  man  make  a  lease  for  life  to  A.  B.  and 

foh'^rS.''''^'    C.  and  if  B.  survive  C.  then  the  remainder  to  B.  and  his  hcircs. 
(3  Rep."20.  Here  is  another  exception  out   of  the   said  rule;  for  albeit  the 

2  Rep.  57,  a.b.)   person  be  certaine,  yet  inasmuch  as  it  depends  upon  the  dying  of 
B.  before  C.  the  remainder  cannot  vest  in  C.  presently.     And 

the 


L.  3.  C.  13.  Sect.  722.    Of  Warrantie.         [378.  a.  378.  b. 

the  reason  of  both  these  cases  in  effect  is,  because  the  remainder 
is  to  commence  upon  limitation  of  time,  viz.  upon  the  possi- 
bilitie  of  the  death  of  one  man  before  another,  which  is  a 
common  possibilitie. 

A  man  letteth  lands  for  life  upon  condition  to  have  fee,  and 
warranteth  the  land  in  forma  prsedictd,  afterwards  the  lessee  per-  j-g  Rep.  73.) 
formeth  the  condition  whereby  the  lessee  hath  fee,  the  warranty 
shall  extend  and  increase  according  to  the  state.  And  so  it  is 
in  that  case  if  the  lessor  had  died  before  the  performance  of  the 
condition,  the  warrantie  shall  rise  and  increase  according  to  the 
estate,  and  yet  the  lessor  himselfe  was  never  bound  to  the  war-  (Hob.  130, 131.) 
rantie,  but  it  hath  relation  from  the  first  livery.  And  by  this  it 
appeareth  that  a  warranty  being  a  covenant  reall  executory,  may 
extend  to  an  estate  infuturo,  having  an  estate  whereupon  it  may 
worke  in  the  beginning.  But  if  a  man  grant  a  seigniorie 

[378.1  for  yeares,  upon  condition  to  have  fee  0^  with  a  war- 
b.  J  rantym/or?ndpra'cZ('c^d,  and  after  the  condition  is  per- 
formed, this  shall  not  extend  to  the  fee  because  the 
first  estate  was  but  for  yeares,  which  was  not  capable  of  a  war- 
ranty (A).  And  so  it  is,  if  a  man  make  a  lease  for  yeares,  the 
remainder  in  fee,  and  warrant  the  land  in  forma prsedida,  he  in 
the  remainder  cannot  take  benefit  of  the  warranty,  because  he  is 
not  partie  to  the  deed ;  and  immediately  he  cannot  take,  if  he 
were  partie  to  the  deed,  because  he  is  named  after  thehabenditm, 
and  the  estate  for  yeares  is  not  capable  of  a  warrantie.  And  so 
it  is  if  land  be  given  to  A.  and  B.  so  long  as  they  joyntly  together 
live,  the  remainder  to  the  right  heirs  of  him  that  dieth  first,  and 
warrant  the  land  in  forma  prcedictd  ;  A.  dieth,  bis  heire  shall  (1  Rep.  17.) 
have  the  warrantie  ;  and  yet  the  remainder  vested  not  during  the 
life  of  A.  for  the  death  of  A.  must  precede  the  remainder,  and 
yet  shall  the  heire  of  A.  have  the  land  by  discent. 


Sect.  722. 

l^HE  second  cause  is,  if  the  first  son  alien  the  tenements  in  fee,  then 
is  the  freehold  and  the  fee  simple  in  the  alienee,  and  in  none  other; 
and  if  the  donor  had  any  reversion,  hy  such  alienation  the  reversion  is 
discontinued :  then  how  by  any  reason  may  it  he  (donques  coment  per 
ascun  reason  poit  *  ceo  estre)  that  such  remainder  shall  commence  his 
being  and  his  groiving  immediately  after  such  alienation  made  to  a  stran- 
ger, that  hath  by  the  same  alienation  a  freehold  and  fee  siynple,  ^c.  ? 
And  also  if  such  remainder  should  be  good,  then  might  he  enter  upon 
the  alienee,  where  he  had  no  manner  of  right  before  the  alienation, 
which  should  bee  inconvenient. 

"  TF  the  first  sonne  alien,  &c."     By  the  alienation  of  the  donee 
two  things  are  wrought. 
First  the  franktenement  and  fee  is  in  the  alienee. 

Secendly,  the  reversion  is  devested  out  of  the  donor,  [j]  And  [q]  21  H.  7. 11. 

therefore  ^7  H.  8.  24. 

*  ceo  not  in  L.  or  M.  or  Roh, 


(A)    Vid.  Sect.  350,  attd  lord  Coke's  commtnt  thereon. 


378.  b.  379.  a.]        Of  Warrantie.    L.  3.  C.  13.  Sect.  722. 

therefore  by  the  alienation  that  transferreth  the  freehold  and  fee 

simple  to  the  alienee,  there   can  no  remainder  be  raised  and 

[r]  6  E.  2.  Quid    vested  in  the  second  sonne.   [r]  As  if  a  man  make  a  lease  for  life 

juris  chim.  20.      upon  condition  that  if  the  lessor  grant  over  the  reversion,  that 

fd '^'•5  2*76      '  *'^^'^  *^^^  lessee  shall  have  fee ;  if  the  lessor  grant  the  reversion 

Dyer,  209.  a.        by  fine,  the  lessee  shall  not  have  fee;  for  when  the  fine  transfer- 

Plowd.  487.)        j-eth  the  fee  to  the  conusee,  it  should  be  absurd,  and  repugnant  to 

Argumentum  j-eagon,  that  the  same  fine  should  worke  an  estate  in  the  lessee: 
ex  ausuruo.  „  '     ,.  .  p  t    ,  it 

(5  Rep.  8.  a.)  for  one  alienation  cannot  vest  an  estate  01  one  and  the  same  land 
to  two  severall  persons  at  one  time. 

In  a  man's  owne  grant,  which  is  ever  taken  most  forcibly 
against  himselfe,  the  reason  of  Littleton  doth  hold;  for  it  hath 
[s]  20  H.  8.  beene  resolved  by  the  justices,  [s]  that  if  a  man  seised  of  an  ad- 
Presentmente^al  ^Q^gQQ  i^  fgg  })y  j^ig  (jgg(j  granteth  the  next  presentation  to  A. 
33  H.  8.  ib.  65.'  and  before  the  church  becometh  void,  by  another  deed  grant  the 
29  H.  8.  next  presentation  of  the  same  church  to  B.  the  second  grant  is 

ri' Fi"^^282  ^o\di,  for  A.  had  the  same  granted  to  him  before ;  and  the  grantee 
283.  ^^'  '  shall  not  have  the  second  avoydance  by  construction,  to  have  the 
(5  Rep.  56.)         next  avoydance  which  the  grantor  might  lawfully  grant,  for  the 

grant  of  the  next  avoydance  doth  not  import  the  second 
[(]  15  H.  7.  7.      presentation.  [<]  Butif  amanseisedof  an  B^°advowson  r379.~| 
19  E- ^  in  fee  take  wife;  now  by  act  in  law  is  the  wife  intitled  |_     a.     J 

(3  Cro!™90      '    *o  the  third  presentation,  if  the  husband  die  before. 
791.)         '         The  husband  grant  the   third  presentation  to  another,  the  hus- 
(2Cro.  691.)         band  die,  the  heire  shall  present  twice,  the  wife  shall  have  the 
qTs'^C^^"'''^'      t^'^*^  presentation,  and  the  grantee   the  fourth ;  for  in  this  case 
Hob."  120.  it  shall  be  taken  the  third  presentation,  which  he  might  lawfully 

Ant.  189.  a.)  grant ;  and  so  note  a  diversitie  hetweene  a  title  by  act  in  law 
and  by  act  of  the  partie;  for  the  act  in  law  shall  worke  no  pre- 
judice to  the  grantee. 

2^8 '^'  V^  ^  "  ^^^^  if  such  remainder  shall  he  good,  &c."  The  force  of  this 

argument  is,  that  seeing  the  estate  of  the  alienee  (albeit  the 
words  of  the  condition  be,  that  the  state  should  cease  and  be 
void)  being  an  estate  of  inheritance  in  lands  or  tenements,  cannot 
cease  or  be  void  before  the  state  be  defeated  by  entrie ;  then  if 
this  remainder  should  be  good,  then  must  it  give  an  entrie  upon 
the  alienee  to  him  that  had  no  right  before,  which  should  be 
against  the  expresse  rule  of  law,  viz.  that  an  entrie  cannot  be 
given  to  a  stranger  to  avoid  a  voydable  act,  as  before  hath  beene 
said  in  the  Chapter  of  Conditions. 

Vide  Sect.  87.  "  Which  shoidd  hee  inconvenient."      Here  note  three  things  : 

Ac.  First,  that  whatsoever  is  against  the  rule  of  law  is  inconvenient. 

Secondly,  that  an  argument  ah  inconvenient i  is  strong  to  prove  it 
is  against  law,  as  often  hath  beene  observed.  (N.)  Thirdly,  that 
new  inventions  (though  of  a  learned  judge  in  his  owne  profession) 
are  full  of  inconvenience,  Pericidosum  est  res  novas  et  inusitalas 
inducere. 

£Jventiis  variosres  nova  semper  hahet. 

(N)  ^8  to  the  limited  force  of  the  arc/ument  ab  inconvenienti,  see  ante,  note  1.  to  66.  a. 

Sect. 


L.  3.  C.  13.  Sect.  723.      Of  Warrantie.      [379.  a.  379.  b. 

Sect.  723. 

T^HE  third  cause  is,  when  the  eondition  is  such,  that  if  the  elder  sonne 
alien,  ^c.  that  his  estate  shall  cease  or  bee  voide,  ^-c.  then  after  such 
alienation,  <j-c.  may  the  donor  enter  by  force  of  such  condition  f,  as  it 
seemeth  ;  and  so  the  donor  or  his  heires  in  such  case  ought  sooner  to  have 
the  land  than  the  second  sonne,  that  had  not  any  rigid  before  such 
alienation ;  and  so  it  seemeth  that  such  remainders  in  the  case  af ore- 
say  d  are  voidX. 

HERE  it  is  to  bee  observed,  that  part  of  the  condition  that  (l  Rep.  48^  62^_ 
prohibited  the  alienation  made  by  tenant  in  taile  is  good  g  ^^^  ^^rf' 
in  law,  with  such  distinction  as  hath  beene  before  said  in  the  c  Rep.  40. 
Chapter  of  Conditions.     And  the  consequent  of  the  condition,  2  Rep.  50. 
viz.  that  the  lands  should  remaine  to  another,  &c.  is  voyd  in  law,  ^^^' '     '  ^'' 
and  by  the  opinion  of  Littleton  the  donor  may  re-enter  for  the 
condition  broken;  for  Utile  per  Inutile  non  vlllatur :  which  being  (i  Roll.  Abr. 
in  case  of  a  condition  for  the  defeating  of  an  estate,  is  worthy  ■i'^S.) 
of  observation. 

And  it  is  to  bee  noticed,  that  after  the  death  of  the  donor,  the 
condition  descendeth  to  the  eldest  sonne,  and  consequently  his 
alienation  doth  extinguish  the  same  for  ever;  wherein  the  weak-  (lo  Rep.  40.  b.) 
nesse  of  this  invention  appeareth;  and  therefore  Littleton  here 
saith,  that  it  seemeth  that  the  donor  may  re-enter,  and  speaketh 
nothing  of  his  heires.  A  man  hath  issue  two  sonnes,  and  maketh 
a  gift  in  taile  to  the  eldest,  the  remainder  in  fee  to  the  puisne, 
upon  condition,  that  the  eldest  shall  not  make  any  discontinuance, 
with  warrantie  to  barre  him  in  the  remainder;  and  if  he  doth, 
that  then  the  puisne  sonne  and  his  heires  shall  re-enter,  the  eldest 
makes  a  feoffment  in  fee  with  warrantie,  the  father  dieth,  the 
eldest  soone  dieth  without  issue,  the  puisne  may  enter ;  but  if  the 
discontinuance  had  beene  after  the  death  of  the  father,  the  puisne 
could  not  have  entred.  In  this  case  foure  points  are  to  be  ob- 
served.    First,  as  Littleton  here  saith,  the  entrie  for  the  breach 

of  tlie  condition  is  given  to  the  father,  and  not  to  the  ^jq  Rep.  109.) 
r379.n  puisne  sonne.     Secondly,  fi.@°"  that  by  the  death  of  the  41  E.  3.  fol. 
[_     b.     J  father  the  condition  descends  to  the  elder  sonne,  and 

is  but  suspended,  and  is  revived  by  the  death  of  the 
eldest  sonne  without  issue,  and  descendeth  to  the  youngest 
sonne.  Thirdly,  that  the  feoffment  made  in  the  life  of  the  Vid.  Sect.  446. 
father  cannot  give  away  a  condition  that  is  collaterall,  as  it  may 
doe  a  right  (A).  Fourthly,  that  a  warrantie  cannot  binde  a 
title  of  entrie  for  a  condition  broken  (as  hath  beene  said) ;  but  ^jq  Rep.  95.) 
if  the  discontinuance  had  beene  made  after  the  death  of  the 
father,  it  had  extinct  the  condition :  which  case  is  put  to  open 
the  reason  of  our  author's  opinion  (1). 

In 

I  &c.   added  in  L.  and  M.  and  Roh.  %  tfr.  added  in  L.  and  M.  and  Roh, 

(A)  Vid.  ante  265.  a.  265.  h. 


(1)  In  some  of  the  former  notes  there  has  been  found  occasion  to  anticipate 

many  of  the  observations  which  oth-rwisc  would  have  occurred  upon  this  and 

^  the 


379.  b.J  Of  Warrantie.  L.  3.  C.  13.  Sect  723. 

In  these  last  three  Sections  our  author  hath  taught  us  an  ex- 
cellent point  of  learning,  that  when  any  innovation  or  new  inven- 
tion starts  up,  to  trie  it  with  the  rules  of  the  common  law  (as  our 
author  here  hath  done);  for  these  be  true  touchstones  to  sever 
the  pure  gold  from  the  drosse  and  sophistications  of  novelties  and 


the  three  preceding  Sections.     See  ante  203.  b.  n.  1.  216.  a.  n.  2.  223.  b.  n.  1. 
and  particularly  327.  a.  n.  2. — It  may  however  be  further  observed,  that  this 
is  one  of  the  many  attempts  which  have  been  made  at  different  times  to  pre- 
vent the  exercise  of  that  right  of  alienation  which  is  inseparable  from  the  estate 
of  a  tenant  in  tail.     The  chief  of  them  are  stated  in  a  very  pointed  manner  by 
Mr.  Knowler,  1  Bur.  84.     He  observes,  that  the  power  to  suffer  a  common 
recovery  is  a  priviledge  inseparably  incident  to  an  estate  tail;  it  is  a  potestas 
alienandi,  which  is  not  restrained  by  the  statute  de  donis,  and  has  been  so 
considered  ever  since  Taltarum's  case  [12  E.  4.  14.  b.  p.  16].  _  And  this  power 
to  suffer  a  common  recovery  cannot  be  restrained  by  condition,  limitation, 
custom,  recognizance,  statute  or  covenant.     That  it  cannot  be  restrained  by 
condition,  appears  by  Co.  Litt.  223.  b.  224.  a.  and  Sonday's  case,  9  Eep.  128.— 
That  it  cannot  be  restrained  by  limitation,  appears  by  Cro.  Jac.  696.     Foy  v. 
Hinde,  and  by  Sonday's  case,  and  other  books. — That  it  cannot  be  restrained 
by  custom,  appears  by  the  case  of  Taylor  and  Shaw,  in  Carter  6,  and  22.— 
That  it  cannot  be  restrained  by  recognizance,  or  by  statute,  appears  by  Pool's 
case,  cited  in  Moore,  810.— That  it  cannot  by  restrained  by  covenant,  appears 
by  the  case  of  Collins  v.  Plummer,  1  Peere  Wms.  104.— That  an  attempt  to 
suffer  a  common  recovery  cannot  be  restrained,  appears  by  Corbet's  case,  in 
the  1  Rep.  83.  b.  Sir  Anthony  Mildmay's  case,  in  the  6  Rep.  40,  and  the  case  of 
Pierce  v.  Win,  in  1  Ventr.  321.     And  that  a  conclusion  or  agreement  to  suffer  a 
recovery  cannot  be  restrained,  appears  by  Mary  Portington's  case,  in  the  10  Rep, 
35. — One  of  the  last  attempts  to  establish  a  perpetuity  was  made  in  the  will  of 
John  Duke  of  Marlborough,  where  a  power  was  given  to  trustees,  on  the  birth 
of  the  sons  of  the  several  persons  therein  mentioned,  to  revoke  the  uses  limited 
to  those  sons  in  tail  male;  and  in  lieu  thereof,  to  limit  the  estates  to  the  use 
of  such  sons  for  their  lives,  with  immediate  remainders  to  the  respective  sons 
of  such  sons  severally  and  successively  in  tail  made.     Lord  Northington,  in 
1759,  declared  this  clause,  as  it  tended  to  a  perpetuity,  and  was  repugnant  to 
the  estate  limited,  was  void  and  of  no' effect.     There  was  an  appeal  from  this 
decree  to  the  lords.     And  after   hearing  counsel  upon   it,   the  judges  were 
ordered  to  attend,  and  their  opinion  was  asked,  '' Whether  by  the  rules  of  law 
"  an  estate  tail  limited  to  the  use  of  persons  unborn  by  any  deed  or  will,  can, 
''  by  virtue  of  any  power  given   by  such  deed  or  will   to  trustees,  be  revoked 
"  upon  the  birth  of  such  persons,  and  a  new  estate  limited  to  such  persons 
"  for  their  lives  respectively,  with  remainder  to  their  issue  successively  in  tail 
''male?"     The  lord  chief  justice  of  the  common  pleas  delivered  the  unani- 
mous opinion  of  the  judges  in  the  negative.     The  utmost  stretch  towards  a 
perpetuity  which  the  courts  have  hitherto  allowed,  is  through  the  medium  of 
an  exercise  of  a  power  of  appointment  limited  in  a  deed  or  will.     If  the  objects 
of  the  power  be  not  restrained  to  any  particular  description  of  persons,  but 
designed  generally  to  be  such  persons  as  the  party  to  whom  the  power  is 
given  shall  appoint,  there  is  no  question  but  he  may  appoint  life  estates,^  with 
remainders  over,  in  the  same  manner  as  he  might  do  by  a  substantive  original 
conveyance,  notwithstanding  the  persons  to  whom  the  life  estates  are  appomted 
were  not  in  existence  at  the  time  of  the  execution  of  the  conveyance  in  which 
the  power  contained.     But  it  seems  to  be  otherwise,  if  the  objects  of  the 
power  are  restrained  to  any  particular  description  of  persons,  as  to  the  children 
of  the  appointer.     See  Alexander  v.  Alexander,  2  Ves.  sen.  640.  and  Robinson 
V.  Hardcastle,  in  Mr.  Brown's  Rep,  of  Cases  determined  in  Chancery  during  the 

26th 


L.  3.  C.  13.  Sect.  723.      Of  Warrantie.  [379.  b. 

new  inventions.     And  by  this  example  you  may  perceive,  that  (Plowd.  413.) 
the  rule  of  the  old  common  law  being  soundly  (as  our  author  ^^^-  ^^2*  '^O 
hath  done)  applying  to  such  novelties,  it  doth  utterly  crush  them 
and  bring  them  to  nothing;  and  commonly  a  new  invention  doth 
oifend  against  many  rules  and  reasons  (as  here  it  appeareth)  of 
the  common  law ;  and  the   antient  judges  and  sages  of  the  law 
have  ever  (as  it  appeareth  [*]  in  our  bookes)  suppressed  innova-  p-i  31^3 
tions  and  novelties  in  the  beginning,  as  soone  as  they  have  Gager  deliver- 
offered   to   creepe   up,  lest  the  quiet  of  the  common  law  might  *°ce,  5. 
be  disturbed  :  and  so  have  [o]  acts  of  parliament  done  the  like,  gg  ^^  3  , 
whereof  by  the   authorities   quoted  in  the  margent,  you  may  in  2  H.  4. 18,  &c. 
stead  of  many  others,  upon  this  occasion  take  a  little  taste.    But  [«]  l  E.  3.  cap. 
our  excellent  author,  in  all  his  three  bookes,  hath  said  nothing  Js'e**^^ 
but  Ex  veterum  sapientium  ore  et  more.  1  &  6. 

4  H.  4.  ca.  2.     11  H.  6.  c.  23.    2  E.  4.  cap.  8.  Ac. 

Sect. 


26th  year  of  his  late  majesty's  reign,  p.  22. — The  modes  formerly  used  to 
prevent  the  wife's  dower  seem  open  to  objection.  Sometimes  the  estate  is 
limited  to  a  purchaser  and  a  trustee  and  their  heirs,  but  as  to  the  estate  of  the 
trustee  and  his  heirs  in  trust  for  the  purchaser  and  his  heirs.  This  exposes  the 
pui'chaser  to  the  chance  of  the  trustee's  dying  in  his  life ;  in  which  case  the 
right  of  dower  will  attach  upon  the  estate.  Sometimes  the  estate  is  limited  to 
the  purchaser  and  a  trustee,  and  the  heii's  of  the  trustee,  but  in  trust  for  the 
purchaser.  Sometimes  it  is  limited  immediately  to  the  trustee  and  his  heirs, 
in  trust  for  the  purchaser  and  his  heirs ;  but  each  of  these  modes  is  objection- 
able, as  they  keep  the  legal  fee  from  the  purchaser,  and  expose  him  to  all  the 
inconvenience  of  its  escheating  to  the  crown  for  want  of  heirs  of  the  trustee, 
or  of  its  becoming  vested  in  infants,  married  women,  or  persons  residing  at  a 
distance,  not  easily  discoverable,  or  not  willing  to  join  in  the  conveyances 
required  to  be  made  of  it.  Sometimes  even  it  may  be  considered  to  pass  in 
the  general  devise  of  the  trustee's  will,  and  by  that  means  becomes  settled  at 
law  to  uses  in  strict  settlement,  and  therefore  not  to  be  regained  but  by  a  fine 
or  common  recovery,  and  till  the  existence  of  a  tenant  in  taile  not  to  be  regained 
without  the  aid  of  parliament.  It  cannot  therefore  be  desirable  that  the  legal 
fee  should  be  outstanding  in  a  trustee.  To  prevent  this,  the  estates  may  be 
first  limited  to  such  uses  as  the  purchaser  shall  appoint,  and  for  want  of  ap- 
pointment, to  the  use  of  a  trustee,  his  heirs  and  assigns,  during  the  life  of  the 
purchaser,  in  trust  for  him,  and  subject  thereto  to  the  use  of  the  purchaser, 
his  heirs  and  assigns.  If  this  method  be  adopted,  no  doubt  will  remain  of 
the  wife's  right  of  dower  being  eifectually  prevented  ;  the  purchaser  during  his 
life  will  have  the  absolute  command  of  the  legal  fee,  and  at  his  death  it  will 
descend  upon  his  heir. — Another  mode  is  suggested  by  Mr.  Fearne  in  his 
Essay  on  Contingent  Remainders,  6th  edition,  p.  847,  note.  "  The  lands," 
says  he,  "  may  be  limited  to  the  use  of  the  appointees  of  the  purchaser  (in 
"  the  fullest  manner) ;  and  in  default  of  appointment,  to  the  use  of  him  and  his 
"  assigns  during  his  life  ;  and  from  and  after  the  determination  of  that  estate, 
"  by  any  means,  in  his  life-time,  to  the  use  of  some  person  and  his  heirs, 
"  during  the  natural  life  of  the  purchaser,  in  trust  for  him  and  his  assigns  ; 
"  and  from  and  after  the  determination  of  the  estate  so  limited  in  use  to  the 
"  said  trustee  and  his  heirs,  to  the  use  of  the  purchaser,  his  heirs  and  assigns, 
"  for  ever."— [Note  330.] 
Vol.  II.— 46 


379.  b.  380.  a.]  Of  Warrantie.    L.  3.  C.  13.  Sect.  724-25. 


(2  Inst.  293.  cap.  3.) 


Sect.  724. 


A  LSO,  at  the  common  law,  before  the  statute  of  Gloucester,  if  tenant 
by  the  curtesie  had  aliened  in  fee  with  warrantie,  after  his  decease 
this  was  a  barre  to  the  heire,  as  it  appear eth  by  the  words  of  the  same 
statute  (Item,  a  le  common  ley,  devant  I'estatute  de  Gloucester,  si 
tenant  per  le  curtesie  ust  alien  en  fee  ovesque  garrantie  *,  apres  son 
decease  ceo  fuit  un  barre  al  heire,  f  sicome  appiert  per  les  parols  de 
mesme  I'estatute) :  but  it  is  remedied  by  the  same  statute,  that  the  war- 
rantie of  tenant  by  the  curtesie  shall  bee  no  barre  to  the  heire,  unlesse 
that  hee  hath  assets  by  discent  by  the  tenant  by  the  curtesie;  for  before 
the  sayd  statute,  this  was  a  collateral  warrantie  to  the  heire,  for  that  hee 
could  not  convey  any  title  of  discent  to  the  tenements  by  the  tenant  by 
the  curtesie,  but  only  by  his  mother,  or  other  of  his  aneestorsX  ;  and  this 
is  the  cause  why  it  was  a  collateral  warrantie. 


Sect.  725. 


Z?  UT  if  a  man  inheritor  taketh  wife,  who  have  issue  a  sonne  betweene 

them  (les  queux  ont  §  fits  enter  eaux),  and  the  father 
^^=^dieth,  and  the  sonne  entr eth  into  the  land,  and  endow  his  r380."| 
mother,  and  after  the  mother  alieneth  that  which  she  hath  in  L  ^-  J 
dower,  to  another  in  fee,  with  warrantie  accordant,  and  after 
dieth,  and  the  warrantie  descendeth  to  the  sonne,  now  the  son  shall  be 
barred  to  demand  the  same  land  by  cause  of  the  sayd  warrantie  ;  because 
that  such  collatterall  warrantie  of  tenaunt  in  dower  is  7iot  remedied  by 
any  statute.  The  same  law  is  it,  where  tenant  for  life  maheth  an  aliena- 
tion ivith  warrantie,  ^c.  and  dieth,  and  the  warranty  descendeth  to  him 
ivhich  hath  thereversion  or  the  remainder  \\,  they  shall  be  bat  red  by  such 
warrantie  \.. 


(11 H.  r.  cap.  20.  rv^    this  and  the  subsequent    Section    sufficient   hath  beene 
Ant.  366.  b.)        \J  g^y^j  ^gforg  jji  ti^jg  chapter,  Sect.  697. 

"  7s  not  remedied  by  any  statute."     But  by  a  statute  made 
since,  this  case  is  remedied,  as  you  see  before,  Sect.  697. 


Sect. 


*  accord,  added  in  L.  and  M.  and  §  issue  added  in  L.  and  M.  and 

Roh.  Boh. 

t  &c.  added  in  L.  and  M.  and  Roh.  ||  &c.  added  in  L.  and  M.  and  Roh. 

I  &c.  added  in  L.  and  M.  and  Roh.  [  &c.  added  in  L.  and  M.  and  Roh. 


L.  3.  C.  13.  Sect.  726.    Of  Warrantie.    [380.  a.  380.  b. 


Sect.  726. 


^^: 


/>S'0,  in  the  case  aforesaid,  if  it  were  so  that  when  the  tenant  in 
dower  aliened,  |  ^c.  his  heire  ivas  within  age,  and  also  at  that  time 
that  the  ivarrantie  descended  upon  him  he  was  ivitlnn  age :  in  this  case 
the  heire  may  after  enter  upon  the  alienee,  notioithstanding  the  warrantie 
descended,  ^-c.  because  no  lachesse  shal  be  adjudged  in  the  heire  within 
age,  that  he  did  not  enter  upon  the  alienee  in  the  life  of  tenant  in  dower. 
But  if  the  heire  were  within  age  at  the  time  of  the  alienatiori,  ^-c.  and 
after  he  commeth  to  full  age  in  the  life  of  tenant  in  dower,  and  so  being 
of  full  age  he  doth  not  enter  upon  the  alienee  in  the  life  of  tenant  in  doioer, 
and  after  the  tenant  in  dower  dieth,  ^-c,  tliere  per  adventure  the  heire  shall 
be  barredby  such  warrantie;  because  it  shall  be  accounted  his  folly,  that 
he  being  of  full  age  did  not  enter  in  the  life  of  tenant  in  dower,  ^c. 

HERE  note  this  diversitie  :  if  the  heire  bee  within  age  at  the  18  E.  4. 13. 
time  of  the  discent  of  the  warrantie,  he  may  enter  and  avoyd  ^g  ?jg%^Q^' 
the  estate  either  within  age,  or  at  any  time  after  his  full  age;  and  32  E.3.  Gar.  30. 
Litdeton  saith  well,  that  the  inftmt  in  this  case  may  enter  upon  (1  Rep.  120. 
the  alienee;  for  if  he  bring  his  action  against  him,  he  shal  be  ^gV  11 
barred  by  this  warrantie,  so  long  as  the  state  whereunto  the  war-  773,) 
rantic  is  annexed  continue,  and  be  not  defeated  by  entrie  of  the  35  H.  6.  63. 
heire  :  but  if  hee  be  within  age  at  the  time  of  the  alienation  with 
warrantie,  and  become  of  full  age  before  the  discent  of  the  war- 
ranty, the  warranty  shalbarre  him  forever.     Our  author  putteth 
his  cases  where  the  entrie  of  the  infant  is  lawfull ;  [«]  for  where  [„]  ,3  jj.  7,  g^ 

the  entrie  of  the  infant  is  not  lawfull  when  the  war-  35  H.  0.  (13. 
[380.1   rantie  OCT  descendeth,  the  warrantie  doth  binde  the  .5"jJ''^8^Jj'^'"-  ^^• 
|_     b.     J   infant,  as  well  as  a  man  of  full  age  ;  and  the  reason  War.  Br.  si. 

thereof  is,  because  the  state  whereunto  the  warrantie  Lib.  1.  fol.  67.  a. 
was  annexed  continueth  and  cannot  be  avoided  but  by  action,  in  \"i^n°pt'^'V^^''' 
which  action  the  warrantie  is  a  barre  :  and  for  the  same  reason  jgy-g  ^j^g^^ 
likewise  it  is  of  a  feme  covert,  if  her  entrie  be  not  lawful,  a  war-  (l  Rep.  66.) 
rantie  descending  on  her  during  the  coverture,  doth  bind  her.  \jc]  M  ^^  J^- ^-  ^• 
And  albeit  the  husband  be  within  age  at  the  discent  of  the  war-  \  {^^[^  ^gg  ^ "  ^' 
rantie,  yet  if  the  entre  of  the  wife  be  taken  away,  the  warrantie 
shall  binde  the  wife. 

\c[\  And  herein  a  diversitie  is  to  bee  observed  betweene  matters  [7]  20  E.  3. 
of  record  done  or  suffered  by  an  infant,  and  matters  in  fait :  for  :^"il''-  ^"^'-  2"- 
matters  in  fait  he  shall  avoyd  either  within  age,  or  at  full  age,  as  g^.'s.  39.    '    ' 
hath  beene  said  :  but  matters  of  record,  as  statutes  merchants  17  E.  3.  76. 
and  of  the  staple,  recognizances  knowledged  by  him,  or  a  fine  17  Ass.  53. 17. 
levied  by  him,  recoverie  against  him  by  default  in  a  reall  action  ^^  j,"  ^   ' 
(saving  in  dower)  must  be  avoyded  by  him,  viz.  statutes,  &c.  by  Aud.  qusc.  26. 
audita  quserela,  and  the  fine  and  recoverie  (1)  by  writ  of  error  I8E.  3. 

Infant.  61. 
16  H.  7.  5.     15  E.  4.  5.     8  II.  6.  30.     1  H.  7.  15.     (10  Rep.  43.     Siilerf.  321,  322.    F. 
N.  B.  101.  k.     Moor,  76.  400.     9  Rep.  30.  b.  12  Rep.  122, 123.)     6  II.  8.  Saver  de  de- 
fault, Br.  50.     3  H.  6.  10.     1  Mar.  Dy.  104.     (Ant.  131.  a.  Noy.  16.)     (Cro.  Jac.  59. 
Yelv.  88.  contra.) 

during 
I  Sc.  added  in  L.  and  M.  andi  Roh. 

(I)  Since  our  author  wrote,  the  law  seems  to  be  otherwise  understood;  for 
it  is  now  the  common  practice  for  infants,  having  obtained  a  privy  seal  for 

tha 


380.  b.  381.  a.]    Of  Warrantie.    L.  3.  C.  13.  Sect.  726. 

durincr  his  miaoritie  and  the  like.  And  the  reason  thereof  is,  be- 
cause they  are  judiciall  acts,  and  taken  by  a  court  or  a  judge, 
therefore  the  nonage  of  the  partie,  to  avoyd  the  same,  shall  be 
tried  by  inspection  of  judges,  and  not  by  the  couutrey.  And  for 
that  his  nonage  must  be  tried  by  inspection,  this  cannot  be  done 
after  his  full  age :  and  so  is  the  law  clerely  holden  at  this  day, 
though  there  be  some  dilferences  in  our  bookes.  But  if  the  age 
be  inspected  by  the  judges,  and  recorded  that  he  is  within  age, 
albeit  he  come  of  full  age  before  the  reversall,  yet  may  it  be 
reversed  after  his  full  age.  [*]  And  so  it  was  resolved  by  the 
whole  court  of  king's  bench  in  the  case  of  Kekewiclie. 

If  lands  had  beene  given  to  the  husband  and  wife  and  their 
heires,  and  the  husband  had  made  a  feoffement  to  another,  to 
whom  a  coUaterall  ancestor  of  the  wife  had  released  and  died, 
and  the  husband  died,  (and  this  had  beene  before  the  statute  of 
32  H.  8.)  this  warrautie  had  so  bound  her  waiveable  right,  as  she 
could  not  waive  her  estate,  and  claime  dower.  Otherwise  it  is  of 
an  estate  determined  :  for  if  a  disseisor  make  a  lease  to  the  hus- 
band and  wife  during  the  life  of  the  husband,  and  the  husband 
dieth,  she  may  disagree  to  this  estate  determined,  to  save  her- 
selfe  from  dammages.  And  so  note  a  diversitie  betweene  an 
estate  determined,  and  an  estate  bound  by  warrantie. 


[»]  Pasch. 
13  J.  R.  in  the 
king's  bench. 


(Ante,  171.  b. 
246.  a.  337.  b. 
350.  b.) 


[jl]  PI.  Com. 
Stowel's  case, 
355,  Ac. 
(2  Rep.  44. 
Moor,  92. 
4  Rep.  4.  b. 
I)  Rep.  85.) 


" No  lacJiesse shaihe adjudged  in  the  heire  icithin  age."  Laches, 
or  lasches,  is  an  old  French  word  for  slacknesse  or  negligence,  or 
not  doing.  And  the  rule  (that  no  negligence  shall  be  adjudged 
in  an  infant)  is  true,  where  he  is  thereby  to  be  barred  of  his 
entrie  in  respect  of  a  former  right,  as  by  a  descent;  or  of  his 
former  right,  (as  Littleton  doth  here  put  an  example)  by  a  war- 
rantie where  his  entrie  is  congeable.  But  otherwise  it  is  of  con- 
ditions, charges  and  penalties  going  out  of  or  depending  upon 
the  originall  conveyance,  for  the  laches  or  negligence  shall  be 
adjudged  in  those  cases  as  well  in  the  infant  as  any  other. 
[^]  Vid.  Fl.  Com.  StoweVs  case  per  totum.  And  see  further  there, 
where  an  infant  being  tenant  for  life  or  yeares,  shall  be  punished 
for  doing  or  suffering  of  waste ;  and  where  he  claimeth  by  pur- 
chase, a  cessavit  shall  lie  against  him,  if  he  pay  not  his  rent  by 
two  yeares.  And  some  have  said,  if  he  have  the  tenancie  by 
discent,  and  he  himself  cesse,  a  cessavit  doth  lie,  and  he  shall 
not  have  his  age  because  it  is  of  his  owne  cesser,  31  E.  3.  Age,  54. 
But  other  bookes  (as  some  conceive  them)  be  against  that:  Vid. 
9  Edw.  3.  50.  28  E.  3.  99.  14  E.  3.  Age,  88.  2  E.  2. 
Age,  132,  £@"  and  others,  which  bookes  doe  not  prove 
that  the  cessavit  doth  not  lye  in  that  case,  but  the  con- 
trary, that  hee  shall  have  his  age,  to  the  end  he  may 
at  his  full  age  certainly  know  what  to  plead,  or  what  arrerages 
to  tender ;  for  the  land  was  originally  charged  with  the  seigniorie 
and  services. 

Sect. 


['^■] 


that  purpose  to  suffer  common  recoveries ;  and  the  law  seems  to  have  been  so 
settled  ever  since  Blount's  case,  which  is  reported  in  Hobart's  Reports,  page 
196;  which  recovery  was  afterwards  held  good  on  a  writ  of  error  brought,  and 
infancy  assigned  for  error;  as  mny  be  seen  in  W.  Jones,  318.  Cro.  Car.  307. 
where  the  case  is  reported  under  the  names  of  the  earl  of  Newport  v.  sir  Henry 
Mildmay.     See  2  Salk.  567.     Note  to  the  llth  edition. — [Note  331.] 


L.  3.  C.  13.  Sect.  727-28.  Of  Warrantie.   [381.  a.  381.  b. 


beet.    7.^7.  (Ant.  52.  b.  325.) 

J^JJT  now  hy  the  statute  made  11  H.  7,  cap.  10,  it  is  ordained,  if  any 
woman  discontinue,  alien,  release,  or  confirme  u'ith  warrantie  any 
lands  or  tenements  which  she  holdeth  in  dower  for  terme  of  life,  or  in 
taile  of  the  gift  of  her  husband,  or  of  his  ancestors,  or  of  the  gift  of  any 
other  seised  to  the  use  of  the  first  husband,  or  of  his  ancestours,  that  all 
such  warranties,  tf-c.  shall  be  void  ;  and  that  it  shall  be  laivfullfor  him 
which  hath  these  lands  or  tenements,  after  the  death  of  the  same  zvoman 
to  enter. 

^rmS  is  an  addition  to  Littleton,  and  therefore  to  be  passed 
-»  over.  And  hereof  sufficient  hath  beene  said  before,  Sect. 
697. 


Sect.  728. 

ALSO,  it  is  spoken  in  the  end  of  the  said  statute  of  Gloucester,  which 
speaketh  of  the  alienation  with  warrantie  made  by  the  tenantby  the 
courtesie  in  this  forme.  Also,  in  the  same  manner,  the  heire  of  tJw 
woman  after  the  death  of  the  father  and  mother  shall  not  be  barred  of 
action,  if  hee  demandeth  the  heritage  or  the  marriage  of  his  mother  by 
writ  of  entry,  that  his  father  aliened  in  his  another's  time,  whereof  no 
fine  is  levied  in  the  king's  court :  and  so  by  force  of  the  same  statute,  if 
the  husband  of  the  wife  alien  the  heritage  or  marriage  of  his  wife  in  fee 
with  warrantie,  ^c.  by  his  deed  in  the  countrey,  it  is  cleere  law,  that  this 
warranty  shall  not  bar  the  heire,  unlesse  hee  hath  assents  by  discent  f. 

"  Tl/'BER EOF  710  fine  is  levied  in  the  king's  court,  d-c."  Here  (Ant.  115.  a. 

arc  three  things  worthy  of  observation  concerning  the  ggg"  '\    ^'    ' 

construction  of  statutes.     First,  that  [a]  it  is  the  most  naturall  [„]  pi.  Com. 

and  genuine  exposition  of  a  statute  to  construe  one  part  of  the  f-  75.  7  E.  3.  89. 

statute   by  another  part  of  the  same  statute,  for  that  best  ex-  [^■o'^^'3}'J'^' 

11  •  /■    1  1  »      1  1  •  ^  B.o\\  50.  b. 

prcsseth  the  meaning  oi  the  makers.  As  here  the  question  upon  5s.  76.) 

the  generall  words  of  the  statute  is,  whether  a  fine  levied  onely  Vide  Bracton, 

by  a  husband  seised  in  the  right  of  his  wife  with  warranty  shall  ^K*'  yu^}' 

barre  the  heire  without  assets.     And  it  is  well  expounded  by  cap.  34. 

the  former  part  of  the  act,  whereby  it  is  enacted  that  alienation  (6  Rep.  Gre- 

made  by  tenant  by  the  courtesie  with  warrantie  shall  |"/i'  *  ^^^®* 

[SBl."]  not  bar  the  heire,  unlesse  assets  B@°"  descend.     And  7  jlep'.  37. 
b.     J   therefore  it  should  be  inconvenient  to  intend  the  statute  8  Hop.  20.  lis. 
in  such  manner,  as  that  he  that  hath  nothing  but  in  Jj|'^-  ^.f.'"^!?: 
the  right  of  his  wife   should  by  his  fine  levied  with  warrantie  405'.  487.' a. 
barre  the  heire  without  assets.     And  this  exposition  is  ex  vice-  11  Rep.  62.  b.) 


ribus  actits. 


Secondly, 


*  This  Section  not  in  L.  and  M.  or  f  dx.   added   in    L.  and   M.  and 

Roh.  Roh. 


381.  b.  382.  a.]     Of  Warrantie.   L.  3.  C.  13.  S.  729,  730. 

Secondly,  the  words  of  an  act  of  parliament  must  bee  taken 
in  a  lawfuU  and  rightfull  sense;  as  here  the  words  being  (whereof 
no  fine  i^  levied  in  the  kings  court)  are  to  be  understood,  whereof 
(10  Rep.  43.)  no  fine  is  lawfully  or  rightfully  levied  in  the  king's  court.  And 
[6]  PI.  Com.  therefore  [b]  a  fine  levied  by  the  husband  alone,  is  not  within 
246.  b.  Seignior  the  meaning  of  the  statute,  for  that  fine  should  worke  a  wrong 
Sr? ^fo^^iV^^*  *^  *^^  ^'^^^  5  ^"^  ^  fi"^  hy^ed  by  the  husband  and  wife  is  in- 
in  case  del  Abbot  tended  by  the  statute,  for  that  fine  is  lawfuU  and  worketh  no 
de  Strata  mer-  wrong,  [c]  So  the  statute  of  W.  2.  cap.  5,  saith  {I(a  quod 
ni  U  H  4  so  episcopus  ecdesiam  conferat)  is  construed,  Ita  quod  episcopus 
9  E.  4.  12.  '  ecdesiam  lajitlml  conferat ;  and  the  like  in  a  number  of  other 
21  H.  6  28.  cases  in  our  bookes.  And  generally  the  rule  is,  Quod  non praestat 

19^11^4^  F  impedimentum  quod  dejure  non  sortltur  effectum. 

don,  15. 

(6  Rep.  20.)  Thirdly,  that  construction  must  be  made  of  a  statute  in  sup- 

pression of  the  mischiefe,  and  in  advancement  of  the  remedie, 
as  by  this  case  it  appeareth.  For  a  fine  levied  by  the  husband 
only  is  within  the  letter  of  the  law  ;  but  the  mischiefe  was,  the 
heire  was  barred  of  the  inheritance  of  his  mother  by  the  war- 
rantie of  his  father  without  assets ;  and  this  act  intended  to  apply 
a  remedy,  viz.  that  it  should  not  barre  unless  there  were  assets, 
and  therefore  the  mischiefe  is  to  be  suppressed,  and  the  remedie 
advanced.  Et  qui  hseret  in  literd,  heeret  in  cortice,  as  often 
before  hath  beene  said. 


(2  Iu9t.  294.) 


Sect.  729. 


7?  UT  the  doubt  is,  if  the  husband  alien  the  heritage  of  his  wife  bt/  fine 
levied  in  the  king's  court  with  warrantie,  cj-c.  if  this  shall  barre  the 
heire  without  any  discent  in  value*.  And  as  to  this,  I  tvill  tell  her  cer- 
taine  reasons,  which  I  have  heard  said  in  this  matter.  I  have  heard  my 
master  sir  Richard  Newton,  late  chief e-justice  of  the  common  pleas,  07ice 
say  in  the  same  court,  that  such  warrantie  as  the  husband  maketh  by  fine 
levied  in  the  king's  court  shall  barre  the  heire,  albeit  hee  hath  nothitig  by 
discent  (coment  que  il  f  ad  riens  per  discent),  because  the  statute  saith 
{whereof  no  fine  is  levied  in  the  king's  court)  \\;  and  so  by  his 
g^""  opinion  this  warrantie  by  fine  \.remaineth  yet  a  collaterall  FSS^.l 
warrantie,  as  it  was  at  the  common  law  not  remedied  by  the  L  ^-  J 
said  statute,  because  the  said  statute  excepteth  alienations  by 
fine  with  warrantie. 


Sect.  730. 

I  ND  some  others  have  said,  and  yet  doe  say  the  contrary,  and  this  is 
their  proof e,  that  as  by  the  same  chapter  of  the  said  statute  it  is  or- 
dained, that  the  warrantie  of  the  tenant  by  the  courtesie  shall  be  no  barre 

to 

*  &c.  added  in  L.  and  M.  and  Roh.       1|  &c.  added  in  L.  and  M.  and  Roh. 
f  ad — n'ad,  L.  and  M.  and  Roh.  \.  &c.  added  in  L.  and  M.  and  lloh. 


L.  3.  C.  13.  Sect.  731.    Of  Warrantie.    [382.  a.&b.  383. a. 

to  the  Jieire,  unlesse  that  he  hath  assets  hy  discent,  ^c.  although  that  the 
tenant  hy  the  courtesie  levie  a  fine  of  the  same  tenements  ivith  ivarrantie, 
^e.  as  strongly  as  hee  can,  yet  this  ivarrantie  shall  not  harre  the  heire, 
unless  that  hee  hath  assets  by  discent,  cj'c.  And  I  believe  that  this  is 
law  ;  and  therefore  they  say,  that  it  should  be  inconvenient  to  intend  the 
statute  in  such  manner,  as  a  man  that  hath  nothing  hut  in  right  of  his 
wife  might  by  fine  levied  hy  him  of  the  same  tenements  (per  fine  levie  per 
luj  t  de  mesmes  J  les  tenements)  ivhich  he  hath  but  in  right  of  his 
wife  with  warrantie,  ^c.  harre  the  heire  of  the  same  tenements  ivithout 
any  discent  of  fee  simple,  ^c.  where  the  tenant  hy  the  courtesie  cannot 
doe  this. 


Sppf     *T\A  (Plowd.  57.b. 

Ot;i>t.     1  ox.  Ant.  115.  a. 

360.  a.  369.  a.  381.  b.)     10  Rep.  43.  Ant.  381.  b.)     (2  lust.  294.) 

J)  TJT  they  have  said,  that  the  statute  shall  bee  intended  after  this  man- 
ner, scilicet,  ivhere  the  statute  saith  (lou  le  statute  §  dit),  tvhereof 
t 38 3.1  no  fine  is  levied  in  the  king's  court,  that  is  to  say  10°  whereof 
b-  J  710  lawful  fine  is  rightfully  levied  in  the  king's  court.  And  that 
is,  whereof  no  fine  of  the  husband  and  his  wife  is  levied  in  the 
king's  court,  for  at  the  time  of  the  making  of  the  said  statute,  every 
estate  of  lands  or  tenements  that  any  man  or  woman  had,  which  should 
descend  to  his  heire,  ivasfee  simple  ivitJiout  condition,  or  upon  certain  con- 
ditions in  deed  or  in  latv.  And  because  that  then  such  fine  might  right- 
fully be  levied  by  the  husband  and  his  wife,  and  the  heires  of  the  husband 
should  warrant,  ^c.  such  warrantie  shall  harre  the  heir,  \.  and  so  they 
say  that  this  is  the  meaning  of  the  statute,  for  if  the  husband  and  his  ivife 
should  make  a  feoffment  in  fee  by  deed  in  the  countrie,  his  heire  after  the 
decease  of  the  husband  and  wife  shall  have  a  writ  of  entrie  sur  cui  in  vita, 
&c.  notwithstanding  the  warrantie  of  the  husband,  then  if  no  such  excep- 
tion were  made  in  the  statute  of  the  fine  levied,  ^c.  then  the  heire  should 
have  the  writ  of  entrie,  ^c.  notwithstanding  the  fine  levied  by  the  husband 
and  his  wife,  because  the  words  of  the  statute  before  the  exception  of  the 
fine  levied,  ^c.  aregenerall,  viz.  that  the  heire  of  the  wife  after  the  death  of 
the  father  and  mother  is  not  barred  of  action  if  he  demand  the  heritage 
or  the  marriage  of  his  mother  by  writ  of  entrie,  that  his  father  aliened  in 
the  time  of  his  mother,  and  so  albeit  the  husband  and  wife  aliened  by  fine 
yet  this  is  true  that  the  husband  aliened  in  the  time  of  the  mother,  and 
so  it  should  hee  in  that  case  of  the  statute,  unlesse  that  such 

t  383.1  ]^^^  words  were,  viz.  whereof  no  fine  is  levied  in  the  king's  court; 
a-    J  and  so  they  say,  that  this  is  to  be  understood,  ivhereofno  fine  hy 
the  husband  and  his  wife  is  levied  in  the  king's  court,  the  ivhich 
is  lawfully  levied  in  such  case  ;  for  if  the  justices  have  knowledge,  that  a 
man  that  hath  nothing  but  in  the  right  of  his  wife  will  levie  a   fine  in 
his  7iame  onely,  they  will  not  neither  ought  they  to  take  such  fine  to  he 

levied 

f  mesme  added  in  L.  and  M.  and         §  dit — parle,  L.  and  M.  and  Rah. 
Roh.  \.  &c.  added  in  L.  and  M.  and  Rob. 

J  mesmes  not  in  L.  and  M.  or  Roh. 


383.  a.  383.  b.]     Of  Warrantie.     L.  3.  C.  13.  Sect.  732. 

levied  hy  the  husband  alone  without  his  wife  (car  si  les  justices  ont  conu- 
sans,  que  home  que  n'ad  riens  forsque  en  droit  sa  feme,  voile  levier  un 
fine  en  son  nosme  solement,  ils  ne  voylont,  ne  *  unque  devoyent  prender 
tiel  fine  d'estre  levie  per  le  baron  solement  sans  t  sa  feme),  ^c.  Ideo 
quaere  of  this  matter,  ^e.  J 

"  T HAVE  heard  my  master,  sir  Richard  Newton,  &c."  who 
was  a  gentleman  of  an  ancient  family ;  in  Latine,  de  nova 
villa;  in  French,  de  nevfe  ville  ;  and  a  reverend  learned  judge, 
and  worthily  advanced  to  be  chiefe-justice  of  the  court  of  com- 
mon pleas,  whom  our  authour  remembers  with  great  reverence, 
as  by  his  words  you  may  perceive,  calling  him  his  master,  and 
citeth  his  opinion  delivered  once  in  the  court  of  common  pleas, 
which  our  author  heard  and  observed  (whose  example  therein 
it  is  necessary  for  our  student  to  follow ;  but  the  latter  opinion 
(as  hath  beene  before  observed)  being  Litdeton's  owne,  is  against 

[d]  Bract.  321.  the  opinion  of  the  lord  Ncicton  [d],  and  the  law  is  holden  cleerely 
Fleta,  hb.  5.  ^j^j^  ^^^  authour  at  this  day  ;  and  our  authour  (as  in  all  other 
8  E.  2.  Gar.  81.  cases)  hath  good  authoritie  in  law  to  warrant  his  opinion  :  Nul- 
18  E.  3.  51.  lius  hominis  audioritas  tantura  apud  nos  valere  debet,  ut  meliora 
'x>f''c    ^^^7         *'""  sequeremur  si  quis  attulerit. 

(3  Rep.  77.) 

Sect.  731.  "  For  if  the  justices  have  haowledge,  (&c."  Hereby  it  appeareth 

[e]  33  H.  6.  52.    [e]  that  the  judge  if  bee  knoweth  it,  ought  not  to  take  knowledge 

0  f;-^"i^^'    T-o   of  a  fine  that  worketh  a  wrong  to  a  third  person. 
2  Eliz.  Dier,  178.  <=  ^ 

1  H.  7.  9.     1  Mar.  80.     4  E.  3.  41.     7  Eliz.  Dier,  246.     Vide  Sect.  87,  Ac. 

"  That  it  sJioidd  he  inconvenient."     Argumentnm  ah  inconve- 
nienti,  is  very  forcible  in  law,  as  often  hath  beene  observed  (N). 

Of  the  rest  of  these  three  Sections  sufficient  hath  beene  said 
before. 


Sect.  732. 

A  LSO,  it  is  to  be  understood,  that  in  these  words  ivhere  the  heire 
demands  the  heritage  or  the  marriage  of  his  mother,  this  word  {or) 
is  a  disjunctive,  and  is  as  much  to  say,  if  the  heire  demand  the  heritage  of 
his  mother  viz.  the  tenements  that  his  mother  had  in  fee  simple  hy  discent 
or  by  purchase,  or  if  the  heire  demand  the  marriage  of  his  mother, 
that  is  M^^  to  say,  the  tenements  that  were  given  to  his  mother  r383."| 
in  frankmarriage.  L    b.     J 

SOME  doe  expound  heritage  of  the  mother  to  be  the  lands 
which  the  mother  hath  by  discent ;  and  that  construction  is 
Vide  Sect.  9.        ^^^^^  i^^^.  ^^^  statute,   by  the  authoritie  of  Littleton,  extendeth 
also  where  the  mother  hath  it  by  purchase  in  fee  simple  ;  for  so 
saith  Littleton  himselfe,  that  this  word  (inheritance)  is  not  only 

intended 

*  unque    not    in   L.    and  M.  or         -f  nosme  added  in  L.  and  M.  and  Eoh. 
Roh.  X  &c.  not  in  L.  and  M.  or  Roh. 

(N)  But  see  ante  note  1  to  66  a.. 


L.  3.  C,  13.  Sect.  733.      Of  Warrantie.  [383.  b. 

intended  where  a  man  hath  lands  by  discent,  but  where  a  man 
hath  a  fee  simple  by  purchase,  because  his  heires  may  inherit 
him.  And  albeit  it  be  true,  that  the  statute  extendeth  to  an 
estate  in  frankmarriage  acquired  by  purchase,  yet  doth  it  extend 
also  to  all  estates  in  taile,  as  well  by  discent  as  by  purchase;  for 
that  frankmarriage  is  put  but  for  an  example. 


Sect.  733. 


jALSO,  where  it  is  contained  in  divers  deedes  these  words  in  Latin 
(come  est  move  f  en  divers  faits  ceux  parolx  en  Latyne)  Ego  et 
haeredes  mei  *  warrantizabimus  et  in  perpetuum  defendemus ;  it  is  to 
bee  seene  what  effect  this  word  (defendemus)  hath  in  such  deede  ;  and  it 
seemeth  that  it  hath  not  the  effect  of  iv arrant ie,  nor  eomprehendeth  in  it 
the  cause  of  warranty  (et  il  serable  que  il  n'ad  pas  I'effect  de  garrantie, 
ne  emprent  en  lay  f  la  cause  de  garrantie) ;  for  if  it  should  he  so,  that 
it  tooke  the  effect  or  cause  of  warrantie,  then  it  should  bee  put  into  some 
fines  levied  m  the  king's  court  (donques  il  serroit  |  mitte  en  ascuns  fines 
levies  en  la  court  le  roy) :  and  a  man  never  saw  that  this  loord  (defende- 
mus) was  in  any  fine  (et  home  ne  veiet  ||  ceo  unque  que  cest  parol  de- 
fendemus fuit  en  ascun  fines),  but  only  this  word  (warrantizabimus) ;  by 
which  it  seemeth,  that  this  tvord  and  verbe  (warrantizo)  maketh  the 
ivarrantie,  and  is  the  cause  of  tvarrantie,  and  no  other  word  in  our  law 
(per  que  semble,  que  cest  parol  §  et  verbe  zvarrantizo,  ^  fait  la  garran- 
tie, et  est  la  cause  de  garrantie,  et  mil  auter  verbe  en  nostre  ley). 

^'  J^GO  et  hseredes  mei  loarrantizahimtis,  et  in  j^erpetuum  de- 
fendemus." Wherein  three  things  are  to  be  observed.   First, 
that  haeredes  mei  are  words  of  necessitie,  for  otherwise  the  heires 
are  not  bound,     [o]  Secondly,  though  in  the  clause  of  the  war-  [«]  6  E.  2. 
lantie  it  bee  not  mentioned  to  whom,  &c.  yet  shall  it  be  intended  Vouch.  238. 
to  the  feoffee.     [U]  Thirdly,  that  the  feoffor  may  by  expresse  J^  „  J'  '/V  ^^^• 
words  warrant  the  land  for  the  life  of  the  feoffee,  or  of  the  feoffor,  [h]  38  E.  3."  14. 
&c.  but  the  recoverie  in  value  shall  bee  in  fee.   [c]  Of  this  Brae-  h)  Bract.  foL 

^o?i  writeth  in  this  manner:  Et  eao  et  haeredes  mei  tvarrantizabi-  ?'.;^?^'ofk  ooi 

,.7  ,.,  .  7       j>       7  Ti  •       Lib.  0.  380,  381. 

THUS  tall  et  ncereaious  suis.tantum,  vet  tali  et  hoiredibus  et  assrg-  Brit.  fol.  106.  b. 

natis  et  hceredihus  assiynaforum,  vet  assignatis  assignatorum  et  Flet.  lib.  5.  cap. 

eorum  ha^redibus,  et  acquietabimus  et  defendemus  eis  totam  terram  \^'  \^^^'  ^' 

illam  cicm  pertinentiis,  contra;  omnes  gentes,  &c.     Per  hoc  autem  35  if,  s.  8. 

qitod  dicit  (ego  hseredes  mei)  obligat  se  et  hseredes  ad  warrantiam  Gar.  90. 

propinquos  et  remotes,  vrcesentes  et  futuros,  ei  siiccedentes  in  infi-  |1".^-  ?:  ^■'^'  ^• 

■4  v>      T.  I  JJ--W  \.-     I-         \  •    ■/•      Brit,  ubi  sup. 

nitum.     rer  hoc  autem  quod  aicit  (warrantizabimus)  suscipit  in  pj^j  yi,;  gyp 

se  ohligationem  ad  defendcndum  suum  tcnentem  in  jjossessione  rei  11  H.  6.  48. 

datce  et  assignatos  suos  et  eorum  haredes  et  omnes  alios,  &c.    Per  ^  ^-  ^-  ^^^-  ^^^' 

hoc  autem,  qv^od  dicit  (acquietabimus)  obligat  se  et  haeredes  suos  ad 

acqxdetandum 

f   move — mote,    L.    and    M.    and  l|  ceo  not  in  L.  and  M.  or  Roh. 

Roh.  §  et  verbe  not  in  L.  and  M.  or  Roh. 

*  &c.  added  in  L.  and  M.  and  Roh.  ^  as,  (&c.  added  in  L.  and  M. ;  iScc. 

■}■  la  not  in  L.  and  M.  or  Roh.  only  added  in  Roh. 
i  mitte — mote,  L.  and  M.  and  Roh. 


384.  a.]  Of  Warrantie.      L.  3,  C.  13.  Sect.  733.        I 

^  ^  lus  petierit  servitii  vel  f  384.1  I 

aliud  servitium  quani  in  carta  donationis  continetur.  L     ^-      J 


acquietandum  si  quis  QO^  phi 


Per  hoc  autem  quod  elicit  (^de/endemtis)  ohligat  se  et 

Jiaredes  suos  ad  defendendum  si  qiiis  velit  servitutem  ponere  rei 

[d]  46  E.  3.  28.    datse  contra  formam  suce  donationis.     [cf]  Hereby  it  appeareth, 

Yyo^'  ^^'         that  neither  defender  e  nor  acquietare  doth  create  a  warrantie, 

Vouch.  262.  l>ut  warrantizare  only.     And  as  Ego  et  hseredes  mei  vxirranti- 

2  E.  4. 15.  a.  zabimus,  &c.  in  Latine  doe  create  a  warrantie;  so,  I  and  my 
f^{  2°F  ^4^15  heires  shall  warrant,  &c.  in  English,  doth  create  a  warrantie  also. 
tit.  Det.  71.  "  M  If  ^  ™an  be  bound  to  A.  in  an  obligation  to  defend  such 
(2Roll.  Abr.  lands  to  A.  whereof  the  obligor  had  infeoffed  him  for  twelve 
396.  Cro.  Car.  5.  yeares,  &e.  in  this  case  if  he  be  ousted  by  a  stranger  without 
Ant.  201.  b. '  being  impleaded,  the  obligation  is  forfeit :  but  if  he  bee  bound 
4  Rep.  80.  to  warrant  the  land,  &c.  the  bond  is  not  forfeited,  unlesse  the 
9  Rep.  61.)         obligee  be  impleaded,  and  then  the  obligor  must  be  readie  to 

warrant,  &c. 

"  Then  it  should  hee  put  into  some  fines,  &c."  Here  Littleton 
draweth  an  argument  from  the  forme  and  words  of  a  fine ;  and 
his  reason  is  this :  that  seeing  that  a  fine  is  the  highest  and 
surest  kinde  of  assurance  in  law,  if  defendemus  had  the  force  of 
a  warrantie,  it  would  have  beene  contained  in  fines :  and  on  the 
other  side,  seeing  this  word  ica.rrantizo  is  contained  in  fines  to 
create  a  warrantie,  that  therefore  that  word  doth  imply  a  war- 
rantie, and  not  the  other. 

'^  And  no  other  word  in  our  law."     Here  it  appeareth,  that 

46  E.  3.  28.  no  other  verbe  in  our  law  doth  make  a  warrantie,  but  icarrantizo 

Vide  Sect.  1.  Only,  which  is  only  appropriated  to  create  a  warrantie. 

But,  Qui  bene  distinguit  bene  docet;  and  here  of  necessitie  you 

r*r3l  E  3  must  distinguish,  [*]  first  betweene  a  warrantie  annexed  to  a 

Vouch.  24. '  freehold  or  inheritance,  (whereof  Littleton  here  speaketh)  and  a 

12  Rich.  2.  warrantie  annexed  to  a  ward,  which  is  a  chattell  reall;  for  there, 

v'     h\b^  g^^^t,  demise,  and  the  like,  doe  make  a  warrantie.    And  of  war- 

29  E.  3.  48.  ranties  annexed  to  freeholds  and  inheritances,  some  be  warranties 

30  E.  3.  6.  b.  in  deed,  and  some  be  warranties  in  law.  A  warrantie  in  deed,  or 
Symken  Symons  ^^  expresse  warrantie,  (vf  hereof  Littleton  here  speaketh)  is  created 
8  E.3.  61.  only  by  this  word  icarrantizo;  but  warranties  in  law  are  created 
12  E.  3.  by  many  other  words :  they  be  therefore  called  warranties  in 
\  ouch.  27.  \^yf^  because  in  judgment  of  law  they  amount  to  a  warrantie 
Vouch.  302."  without  this  verbe  icarrantizo.  [/]  As  dedi  is  a  warrantie  in  law 

3  H.  6. 17.  to  the  feofiee  and  his  heires  during  the  life  of  the  feofi"or,  but  con- 
[/]  Lestat.  de  gg^gj  j^  g,  feoflfment  or  fine  implyeth  no  warrantie.  (1)  But  before 

Bigamis,  c.  6.  ^  ''  iU 

2  H.  7.  7.     6  H.  ttie 

7.  2.     48  E.  3.  2.     31  E.  1.  tit.  Vouch.  290.     F.  N.  B.  134.  b.     6  E.  2.  Vouch.  258. 
(Vaugh.  118.)     (F.  N.  B.  134.  b.) 


(1)  What  is  said  by  sir  Edward  Coke  in  this  place,  and  the  determination 
of  the  judges  in  Nokes'  case,  4  Rep.  80.  and  lord  chief  justice  Vaughan's 
argument  in  Hayes  v.  BickerstaiF,  in  his  Reports,  page  126.  should  remove 
the  scruples  too  often  entertained  on  the  part  of  trustees,  respecting  the  pro- 
priety of  their  conveying  by  the  word  grant.  From  the  passages  here  referred 
to,  it  most  clearly  appears,  that  the  word  grant,  when  used  in  the  conveyance 
of  an  estate  of  inheritance,  does  not  imply  a  warranty;  and  that  if  it  did,  the 
insertion  of  any  express  covenant  on  the  part  of  the  grantor,  would  qualify 

and 


L.  3.  C.  13.  Sect.  733.       Of  Warrantie.  [384.  a. 

the  statute  of  q^daemptores  terrarum,  if  a  man  had  given  lands  by 
the  word  dedi,  to  have  and  to  hold  to  him  and  to  his  heires,  of  the ' 
donor  and  his  heires,  by  certain  services,  then  not  only  the  donor 
but  his  heires  also  had  beene  bound  to  warrantie ;  but  if  before 

that 

and  restrain  its  force  and  operation  within  the  import  and  eflPect  of  that  cove- 
nant, as  the  law,  when  it  appears  by  express  words  how  far  the  parties  designed 
the  warranty  should  extend,  will  not  carry  it  farther  by  construction.  There 
is  therefore  no  reasonable  ground  for  trustees  objecting  to  convey  by  the  word 
grant;  but  serious  objections  maybe  raised  in  some  cases  to  purchasers  taking 
a  conveyance  from  them  without  it.  These  are  stated  in  the  following  passage 
from  Bridgman's  Complete  Conveyancer,  vol.  1.  323. — "  Sir  Jeffrey  Palmer's 
"  resolution  concerning  the  words  give  and  grant  in  a  conveyance.  "  Sir, 
"  I  conceive  that  care  ought  to  be  taken  in  a  conveyance,  of  what  nature 
"  soever  it  be,  that  there  be  not  therein  give  and  grant;  for  they  imply  a 
"  general  warranty,  and  shall  not  be  qualified  by  the  special  warranty  ioWovimg) 
"  as  hath  of  late  been  thrice  adjudged.  H.  T." — Sir  Jeffrey  Palmer's  answer. 
"  Give  implies  ^personal  warranty,  and  so  is  not  always  used.  The  word  grant, 
"  in  a  lease  for  years,  is  a  covenant  in  laio  ;  or  (as  you  may  call  it)  &  general  war- 
"  ranty,  if  it  be  not  qualified  by  a  covenant  or  warranty  in  fait,  but  if  there  be 
"  a  covenant  or  warranty  in  fait,  then  it  is  restrained  to  the  words  of  the  covenant 
"  subsequent.  But  in  an  estate  of  inheritance  where  {he  fee  passeth,  there  the 
"  word  grant  is  neither  a  covenant  in  law,  nor  warranty.  For  if  it  should  be  a 
"  covenant  in  law,  or  warranty  in  itself,  it  would  be  there  restrained  and  qualified 
"  by  the  warranty  and  covenants  in  fait.  And  a  deed  to  pass  an  inheritance 
"  where  common  is  cannot  be  without  it ;  for  if  it  be  common  in  gross,  it  cannot 
"  pass  by  the  livery,  but  must  pass  by  the  word  grant.  And  I  never  yet  saw  a 
^^  feoffment  without  it.  Jeffrey  Palmer."  This  dictum  of  sir  Jeffrey  Palmer  has 
been  sometimes  cited  to  prove  that  it  is  not  safe  for  purchasers  to  take  a  con- 
veyance by  lease  and  release,  or  bargain  and  sale  enrolled,  if  the  conveyance  be 
from  the  trustees,  and  they  do  not  convey  by  the  word  grant.  It  is  said  that  com- 
mons, or  advowsons,  or  other  things  which  be  in  grant,  will  not,  if  they  are 
severed  from  the  inheritance,  pass  without  the  word  grant.  But  this  is  a  mis- 
take, and  by  no  means  warranted  by  sir  Jeffrey  Palmer's  dictum,  which  evi- 
dently applies  only  to  conveyances  by  feoffment;  in  which  case  commons  in 
gross,  &c.  lying  in  grant  would  not  pass  by  the  livery,  and  therefore  without 
the  word  grant,  or  some  other  word  of  a  similar  operatiun,  would  not  pass  by 
the  charter  of  feoffment.  But  in  the  case  of  a  lease  and  release,  there  is  no 
doubt,  that  any  thing  which  lies  in  grant  will  vest  in  the  vendee,  by  the  lease 
for  a  year,  and  that  a  release  without  the  word  grant,  would  operate  by  way 
of  enlargement  to  give  the  releasee  the  fee.  So  in  the  case  of  a  bargain  and 
sale  enrolled,  any  thing  which  lies  in  grant  will  vest  in  the  bargainee  by  the 
statute  of  uses  without  the  word  grant.  Upon  the  whole  therefore  there  is  no 
such  peculiar  operation  in  this  famous  monosyllable,  as  to  make  it  either  dan- 
gerous for  a  trustee  to  convey  by  it,  or  essential  for  a  purchaser  to  require  it. 
How  a  covenant  shall  be  expounded  with  regard  to  the  context,  or  to  synoni- 
mous  or  other  words,  see  Com.  Dig.  Cov.  (D.)  Vin.  Abr.  Covenant  (L.  4.) 

To  explain  more  fully,  what  is  said  above,  it  may  be  proper  to  state  at 
length  the  operation  of  the  word  "grant"  or  "give,"  in  conveyances  of  estates 
in  fee  simple,  in  gifts  in  tail,  in  leases  for  life,  and  in  leases  for  years. — \st.  As 
to  the  operation  of'  the  icord  "grant"  or  "give,"  in  conveyancer  of  estates  in  fee 
simple,  it  is  to  be  observed,  that,  till  the  practice  of  subinfeudation  was  abolished 
by  the  statute  quia  emptores  terrarum,  lands  might  be  granted,  either  to  be 
held  of  the  grantor  himself,  or  to  be  held  of  the  chief  of  the  fee.  When 
they  were  granted  to  be  held  of  the  grantor  himself,  at  least  if  the  grant  were 
made  by  the  word  " dedi"  there,  without  any  other  warranty,  the  feoffor  and 

his 


384.  a.]  Of  Wammtie.        L.  3.  C.  13.  Sect.  733. 

that  statute  a  man  had  given  lands  by  this  word  dedi,  to  a  man  and 
to  his  hoires  for  ever,  to  hold  of  the  cheife  lord,  there  the  feoflfor 
had  not  beene  bound  to  warrantie  but  during  his  life,  as  at  this 
day  he  is. 
^  And 


his  heirs  were  bound  to  warranty.  This  is  enacted  by  the  statute  de  higamis, 
eh.  G.  and  we  have  lord  Coke's  authority  that  this  statute  was  only  declaratory 
of  the  common  law,  in  this  respect.  The  reason  for  implying  warranty,  in  this 
case,  is  by  his  lordship  said  to  be,  that,  "where  dfdi  is  accompanied  with  a 
"  perdurable  tenure  of  the  feoffor  and  his  heirs,  there  dedi  importeth  a  per- 
"  durable  warranty  for  the  feoffor  and  his  heirs,  to  the  feoffee  and  his  heires." 
2  lust.  275.  The  warranty  in  this  instance  was  therefore  a  consequence  of 
tenure,  (ant.  101.  b.)  and  so  necessary  a  consequence  of  it,  that,  where  an 
express  and  qualified  warranty  was  introduced,  it  did  not  restrain  or  circum- 
scribe the  implied  warranty.  When  lands  were  granted  to  be  held  of  the  chief 
lord  of  the  fee,  there  the  tenancy  was  of  the  chief  lord,  and  no  tenure  sub- 
sisted between  the  grantor  and  the  grantee.  Warranty,  therefore,  being  a 
consequence  of  tenure,  did  not  hold  in  these  cases  between  the  grantor  and 
grantee,  as  there  was  no  tenure  between  them  to  raise  it.  Still  the  grantor 
was  supposed  to  be  bound  by  his  own  gift.  The  word  "give,"  therefore, 
imported,  in  this  case,  a  warranty  to  him.  But  this  was  personal  to  the 
grantor;  it  did  not  apply  to  the  heir,  and  it  could  not  affect  him  without  work- 
ing that  involuntary  alienation,  which,  in  a  case  of  that  nature  the  jurispru- 
dence of  those  times  did  not  readily  admit.  The  statute  "  quia  emptores  ter- 
"  raruyn,"  put  an  end  to  the  subinfeudation  of  fee  simple  estates,  and  of  course 
put  an  end  to  the  warranty  we  have  been  speaking  of,  as  incident  to  grants  of 
lands  in  fee  simple,  to  be  held  of  the  grantor  and  his  heirs.  The  consequence 
was,  that,  after  the  statute  quia  emptores  terrariim,  there  was  no  case,  except 
that  of  homage  auncestral,  in  which  warranty,  unless  it  arose  from  the  express 
contract  of  the  parties,  bound  more  than  the  donor,  or  bound  him  longer  than 
the  terme  of  his  life.  2dly,  But  loith  respect  to  estates  tail  and  leases  for  life, 
the  judges  took  this  important  distinction,  that,  where  a  person  seised  in  fee 
granted  for  life  or  in  tail,  reserving  the  reversion  in  himself,  the  grantees  of 
the  particular  estates  held  of  the  reversioner,  and  he  of  the  chief  lord ;  where  a 
person  granted  for  life  or  in  tail,  with  the  remainder  over  in  fee  simple,  both 
the  tenants  of  the  particular  estates,  and  the  remainder-men,  held  of  the  chief 
lord.  In  the  former  case,  therefore,  the  tenure,  between  the  donor  and  the 
donees  still  subsisting,  the  law  remained  as  it  did  before  the  statute,  that  is, 
when  those  estates  were  created  by  the  word  "dedi,"  both  the  donor  and  his 
heirs,  were,  in  consequence  of  the  tenure,  obliged  to  warranty.  Thus  it  stood 
in  respect  of  grants  in  fee  simple,  in  taile,  or  for  life;  and  in  all  these  cases 
the  warranty  must  be  understood  in  its  strict  legal  import,  as  implying  an 
obligation  in  the  lord  to  acquit  his  tenant  against  the  superior  lord,  where 
there  was  a  seigniory  paramount,  and  to  give  the  tenant  a  recompense  in  case  of 
eviction.  3dly,  But  in  leases  for  years,  (to  which  the  subject  now  leads,)  the 
case  is  very  different.  A  lease  for  years,  (See  Bacon's  Abr.  tit.  Leases  and 
Termes  for  Years)  is  a  contract  between  lessor  and  the  lessee  for  the  possession 
and  profits  of  lands,  &c.  on  the  one  side,  and  a  recompense  by  rent,  or  other 
consideration,  on  the  other.  As  the  lessor  contracts  that  the  lessee  shall  hold 
the  land,  he  cannot  claim  it  in  opposition  to  his  covenant. — Thus  he  parts  with 
the  land  during  the  term;  but  his  supposed  parting  with  the  land,  and  the  in- 
terest of  the  lessee  in  it  during  the  term  parted  with,  was  rather  a  con- 
sequence of  law  accruing  from  the  contract,  than  the  contract  for  the  enjoy- 
ment, a  consequence  of  law,  accruing  from  the  parting  with  the  land.  The 
tenant,  therefore,  had  only  the  perception  of  the  profits,  and  was  considered 
to   hold   the   possession    for   the   reversioner.      The    consequence   was,    that 

whoever 


L.  3.  C.  13.  Sect.  733.         Of  Wammtie.  [384  a. 

And  albeit  the  words  of  the  statute  of  bigamis  be  in  cartis  autcm 
uhi  continentur  {dcdi  et  concessi,  &c.)  yet  if  d(nli  be  contained 
alone,  it  doth  import  a  warrantie;  for  the  statute  doth  conclude, 
ipse,  tamen  feoff ator  in  vita  sua  ratione  proprii  doni  sui  tenetur 

warrantizare  ; 


■whoever  recovered  the  freehold,  reduced  the  term  whether  the  recovery  were 
true  or  feigned.  As  the  possession  was  not  considered  to  be  in  the  lessee, 
there  was  originally  no  means  by  which  he  could  recover  it.  His  only  remedy 
was  in  consequenre  of  the  contract,  which  constituted  the  lease.  By  virtue 
of  that,  the  words  "yielding  and  paying,"  &c.  were  construed  a  covenant 
in  favour  of  the  lord,  which  enabled  him  to  recover  his  rent  by  an  action  of 
covenant  or  an  action  of  debt,  and  the  words,  "  grant,  demise,  &c."  were 
construed  a  covenant  in  favour  of  the  tenant,  which  enabled  hira  to  re- 
cover damages  as  a  recompense  for  the  possession  lost.  In  this  sense  they 
are  said  to  imply  a  warranty.  From  the  warranty  of  freehold  estates  it  difiFers 
in  its  nature,  as  that  arises  from  tenure,  this  from  contract ;  and  in  its  opera- 
tion, as  that,  being  a  consequence  of  tenure,  is  not  modelled  by  express 
warranties,  this,  arising  from  the  contract  of  the  parties,  is  considered  to  be 
modified  and  regulated  by  an  express  covenant  inserted  in  the  lease.  See 
Spencer's  case,  5  Rep.  17.  1  Lev.  57.  and  Clarke  v.  Samson,  1  Ves.  sen. 
101.  Lord  Coke,  ant.  101.  b.  and  post  389.  a.  expressly  says,  that  war- 
ranty cannot  be  annexed  to  chattels  real  or  personal ;  for,  says  his  lordship, 
if  a  man  warrants  them,  the  party  shall  have  covenant  or  action  upon  the 
case.  Thus,  therefore,  the  law  stands  since  the  statute  quia  emptores.  In  all 
cases  of  homage  auncestral,  if  any  such  now  exist,  (which  is  at  least  doubtful), 
the  doctrine  of  warranty  remains  as  it  did  before  the  statute,  that  is, — if  the 
grant  was  made  by  the  word  '<  dedi,"  it  imports  a  warranty.  In  other  cases  it 
may  be  expressed  as  the  parties  think  proper ;  if  it  be  not  expressed,  then,  in 
conveyance  in  fee  simple,  it  is  not  implied  by  the  word  "  grant,"  or  any  other 
word  except  the  word  ''give ;"  and  then  it  holds  only  during  the  life  of  the 
grantor ;  in  gifts  in  tail,  and  in  leases  for  life,  by  the  word  "  give,"  where  the 
reversion  is  left  to  the  donor,  the  tenure  between  him  and  the  donee  or  lessee 
still  continues.  Of  that  tenure  it  is  a  necessary  consequence  of  law,  and  is 
not  considered  to  be  restrained  by  any  express  covenants.  In  leases  for  years 
rendering  rent,  warranty,  considering  it  to  import  a  covenant  for  the  quiet  en- 
joyment of  the  term,  is  of  the  essence  itself  of  the  lease  ;  but  the  lease  being 
originally  founded  on  contract,  any  of  its  terms  may  be  varied  by  the  parties 
themselves  at  their  pleasure,  and  is  in  fact  considered  as  varied  ^«-o  tanto  by  the 
insertion  of  any  express  covenant.  But  the  effect  of  an  express  covenant  in 
restraining  the  effect  of  an  implied  general  covenant  is  not  to  be  confounded 
with  the  effect  of  a  particular  covenant  in  restraining  the  effect  of  an  express 
general  covenant,  as  the  latter  is  not  restrained  by  a  subsequent  covenant, 
unless  it  can  be  considered  as  part  of  the  general  covenant.  See  Noke's  case, 
4  Rep.  80.  and  1  Saund.  60. — It  may  happen,  that  a  person  having  a  term  of 
years  only,  conveys  the  lands  as  an  estate  in  fee  simpleio  another  and  his  heirs, 
by  the  word  "  grant."  But  this  cannot  amount  to  a  warranty  of  the  lands,  for 
the  term.  The  operation  of  the  word  "grant,"in  implying  a  warranty  in  the 
creation  or  assignment  of  a  term,  arises  from  implicatiuu  only,  that  is,  from  the 
law's  presuming,  by  the  party's  using  the  word  "  grant,"  that  he  intended  to 
warrant  the  lancls  as  a  terra.  But  his  expressly  treating  the  land  in  the  deed 
as  a  fee  simple  estate,  and  expressly  conveying  it  as  such,  necessarily  rebuts 
every  implication  of  its  being  his  intention  or  undertaking  to  convey  it  as 
a  term  of  years.  In  what  has  been  said  above,  the  grantor  is  considered  as 
the  real  owner  of  the  land,  receiving  the  purchase  money,  or  other  considera- 
tion of  the  estate  or  interest  parted  with.  In  this  case,  independently  of  all 
construction  of  particular  words,  there  is  great  reason  to  consider  him  bound 

to 


384.  a.  ]  Of  Warrantie.    L.  3.  C.  13.  Sect.  733. 

warrantizare ;  so  as  (/ec?t  is  the  word  that  iniplieth  warrantie, 
and  not  concessi.  Also  where  the  words  of  the  statute  bee 
further,  sine  clausula  quse  conttnet,  ivarrantiam,  the  meaning  of 
the  statute  is,  that  dedi  doth  import  a  warrantie  in  law,  albeit 
there  be  an  expresse  warrantie  in  the  deed. 

For  if  a  man  make  a  feoffment  by  dedi,  and  in  the  deed  doth 
warrant  the  land  against  /.  S.  and  his  heires,  yet,  dcdiis  a  generall 

warrantie 


to  warrant  the  property  he  parts  with,  as  he  receives  the  benefit  of  it.  In  the 
case  of  a  trustee,  this  ground  of  raising  or  implying  an  obligation  of  warranty 
necessarily  fails.  Upon  the  whole,  to  apply  what  has  been  said  to  the  point 
mentioned  at  the  beginning  of  the  note,  it  appears  clear,  that  whenever  there 
is  a  deed,  on  the  face  of  which  the  trustee  is  party,  and  conveys,  merely  as 
trustee,  there  is  no  substantial  objection  to  his  conveying  by  the  word  "  grant." 
If  the  lands  are  freehold,  it  is  clear  that  no  warranty  or  covenant  is  imported 
by  it ;  if  it  happens  that  they  are  held  for  a  term  of  years  only,  all  implication 
of  an  intention  or  undertaking  to  convey  them  for  the  term  is  necessarily 
rebutted  by  their  being  treated  in  the  deed,  and  conveyed  by  the  party,  as 
a  fee  simple  estate  ;  and  if  any  such  warranty  or  covenant  would  otherwise  be 
implied,  it  would  be  restrained,  by  his  covenant  that  he  himself  has  done  no 
act  to  encumber,  to  a  warranty  or  covenant  against  his  own  acts.  To  obviate, 
however,  every  doubt  which  may  be  entertained  on  this  ground,  it  is  usual  to 
make  the  trustee  convey  "  according  to  his  estate,  right,  or  interest,  but  not 
<<  further  or  otherwise," — or  to  express  that  he  grants,  &c.  "  not  as  warranting 
"the  title,  but  in  order  to  pass  or  convey  the  lands."  Whenever  the  former 
words  are  inserted,  care  should  be  taken  to  make  them  referrible  to  the  trustee 
only,  and  not  to  the  owner  of  the  fee ;  who,  in  express  contradiction  from  the 
guarded  mode  of  conveyance  applied  to  the  trustee,  should  be  made  to  "  grant," 
&c.  "  fully  and  absolutely." 

It  remains  to  inquire  what  remedy  a  person  purchasing  under  a  defective 
title  has,  exclusively  of  the  purchaser's  warranty  or  covenants,  or  where  the 
title  is  subject  to  a  defect,  which  the  warranty  or  covenants  do  not  reach.  In 
every  case  where  the  seller  conceals  from  the  purchaser  the  instrument  or  the 
fact  which  occasions  the  defect,  or  conceals  from  him  an  incumbrance  to  which 
the  estate  is  subject,  it  is  a  fraud,  and  the  purchaser  has  the  remedy  of  an  action 
on  the  case,  in  the  nature  of  an  action  of  deceit.  But  a  judgment  obtained 
after  the  death  of  the  seller,  in  an  action  of  this  nature,  can  only  charge  his 
property  as  a  simple  contract  debt,  and  will  not,  therefore,  except  under  very 
particular  circumstances,  charge  his  real  assets.  A  bill  in  chancery,  in  most 
cases,  will  be  found  a  better  remedy.  It  will  lead  to  a  better  discovery  of  the 
concealment,  and  the  circumstances  attending  it,  and  may  in  some  cases  enable 
the  court  to  create  a  trust  in  favour  of  the  injured  purchaser.  But  where  the 
instrument  or  the  fact  which  occasions  the  defect  of  the  title,  or  the  instrument 
creating  the  incumbrance,  is  produced,  the  purchaser  has  fair  notice  given  him 
of  it,  and  if  the  covenants  do  not  extend  to  it,  he  appears  to  be  without  remedy, 
unless  he  can  avail  himself  of  the  covenants  of  the  earlier  vendors,  many  of 
which  are  inherent  to  the  lands,  and  to  some  of  which,  as  the  covenant  for  quiet 
enjoyment,  there  is  no  objection,  on  account  of  their  antiquity,  where  the  breach 
is  recent.  It  sometimes  happens,  that  a  purchaser  consents  to  take  a  defective 
title,  relying  for  his  security  on  the  vendor's  covenants.  Where  this  is  the  case, 
this  should  be  particularly  mentioned  to  be  the  agreement  of  the  parties;  as  it 
has  been  argued,  that,  as  the  defect  in  question  was  known,  it  must  be  under- 
stood to  have  been  the  agreement  of  the  purchaser  to  take  the  title,  subject  to 
it,  and  that  the  covenants  for  the  title  should  not  extend  to  M-arrant  it  against 
this  particular  defect.  On  the  general  doctrine  respecting  the  usual  covenants 
for  title,  see  Mr.  Sugden's  Law  of  Vendors,  Ch.  18. — [iS'ote  332.] 


L.  3.  C.  13.  Sect.  733.   Of  Warrantie.     [384.  a.  384.  b. 

warrantie  during  the  life  of  the  feoffor :  and  so  was  the  statute 
expounded  in  both  points.     [</]  Uil.  14  El.  in  the  court  of  com-  q^]  gji  j^  j;j_ 
mon  pleas,  which  I  myselfe  heard  and  observed.     [A]  And  if  a  in  Com.  Banc, 
man  make  a  lease  for  life  reserving  a  rent,  and  adde  an  expresse  W  J^^^  ^-  ^^}- 
warrantie,  here  the  expresse  warrantie  doth  not  take  away  the  ^j^'g   g  j;  3  gg 
warrantie  in  law,  for  he  hath  election  to  vouch  by  force  of  either  of  9  E.  3.  15. 
them.  And  in  Nokes'  case  note  a  diversitie  betweene  a  warrantie  '^^  E.  ?,.  11. 
that  is  a  covenant  reall,  and  a  warranty  concerning  a  chattell.  [t]  q^^^  j'^  q^^  y 
Also  this  word  excambium  doth  imply  a  warrantie.  31  E.  3. 

Vouch.  280. 
32  E.  3.  ib.  102.     43  E.  3.  3.     2  E.  3.  tit.  Cui  in  vita,  17.     3  E.  3.  Forraedon,  44. 
[{]  4  E.  2.  Vouch.  245.     22  E.  3.  3.     J4  H.  6.  2.     20  H.  6.  14.     Lib.  4.  fol.  122.  in 
Bustard's  case.     15  E.  3.     Bar.  255.     43  E.  3.  3.  Lib,  1.  f.  96.    Lib.  5.  fol.  17.    Spen- 
cer's case.     Lib.  8.  fol.  75.     Sr.  Saiford's  case. 

Also  a  partition  implyeth  a  warrantie  in  law,  as  in  the  Chapter 
of  Parceners  appeareth.  And  homage  auncestrell  doth  draw  to 
itselfe  warrantie,  as  hath  beene  said  in  the  Chapter  of  Homage 
Auncestrell. 

And  it  is  to  be  observed,  that  the  warrantie  wrought  by  this 
word  dedi,  is  a  speciall  warrantie,  and  extendeth  to  the  heires  of 
the  feoffee  during  the  life  of  the  donor  only.  But  upon  the 
exchange  and  homage  ancestrell  the  warranty  extendeth  reci- 
procally to  the  heirs,  and  against  the  heirs  of  both  parties ; 
and  in  none  of  the  cases  the  assignee  shall  vouch  by 

[384.1   S^^  force  of  any  of  these  warranties,  but  in  the  case 
b.     J   of  the  exchange  and  dedi,  the  assignee  shall  rebutt, 
but  not  in  the  case  of  homage  auncestrell. 
[^]  And  so  no  man  shall  have  a  writ  of  contra  forniam  colla-  [;;:]  28  Ass.  33. 
tionis,  but  only  the  feoffee  and  his  heires  which  be  privie  to  the  14  H.  4.  5. 
deed ;  but  an  assignee  may  rebutt  by  force  of  the  deed.  ^^t^^'o^'.  ^^' 

'  a  J  J  4  E.  2.  Avowr. 

201  &  202.    19  E.  3.  Avowr.  201,  202.     11  E.  3.  Avowr.  100.     30  H.  6.  7.     33  H   8 
Dyer,  51.     10  H.  7. 11  b.     F.  N.  B.  163.  a. 

[I]  If  a  man  make  a  gift  in  taile,  or  a  lease  for  life  of  land,  by  [;]  6  E.  2. 

deed  or  without  deed,  reserving  a  rent,  or  of  a  rent  service  by  Cont.  de  Vouch. 

deed,  this  is  a  warrantie  in  law,  and  the  donee  or  lessee  being  ]^^'  ^  m'-j'-PJo 
,',,,,,  ,  1  '       .  ,  .11.  .°   4  E.  2.  ibid.  102. 

impleaded,  shall  vouch  and  recover  in  value.  And  this  warrantie  q  e.  3.  11.  50. 

in  law  extendeth  not  only  against  the  donor  or  lessor,  and  his  7  E.  3.  6. 
heires,  but  also  against  his  assignees  of  the  reversion ;  and  so  ^o  p'  q"  \' 
likewise  the  assignee  of  lessee  for  life  shall  take  benetit  of  this  3  h.  7.  iV. 
warrantie  in  law.  6  H.  7.  2. 

14  E.  3.  Garr.  32. 
F.  N.  B.  134.  g.     5  E.  3.  87.     20  E.  3.  tit.  Counterplea  do  Gar.  7. 

[m]  When  dower  is  assigned  there  is  a  warrantie  in  law  in-  [»,]  4  E.  3.  36. 
eluded,  that  the  tenant  in  dower  being  impleaded,  shall  vouch  '^^  E.  3.  tit. 
and  recover  in  value  a  third  part  of  the  two  parts  whereof  she  is  foo^-f  A^°no'^* 

I  11      /I  \  IZZ,  4o  Ass.  o2» 

dowable(l).  50  E.  3.  7. 

And  it  is  to  be  understood,  that  a  warrantie  in  law  and  assets  is  F.  N.  B.  149.  m, 
in  some  cases  a  good  bar.     [/i]  In  a  formedon  in  the  discender  [""'v  V^'  ^'^" 
the    tenant  may  plead,  that   the  ancestor   of   the    demandant  Bar.  255. 
exchanged  the  land  with  the  tenant  for  other  lands  taken  in 

exchange, 


(1)  Tenant  by  the  courtesy  cannot  vouch,  because  he  shall  not  recover 
in  value,  10  II.  7.  10.  b.  but  he  may  pray  in  aid  of  him  in  the  reversion.  Hob. 
Rep.  21.— [Note  333.] 


384.  b.]  Of  Warrantie.  L.  3.  C.  1 3.  Sect.  733. 

exchange,  which  descended  to    the   demandant,  whereunto  he 
hath  entred  and  agreed;  or  if  he  hath  not  entred  and  agreed 
unto  the  lands  taken  in  exchange,  then   the  tenant  may  plead 
the  warrantie  in  law,  and  other  assets  descended, 
[o]  38  E.  3.  22,        [o]  If  tenant  in  taile  of  lands  make  a  gift  in  taile,  or  a  lease 
23,  24.  13  E.  3.    for  life,  rendring  a  rent,  and  dieth,  and  the  issue  bringeth  a 
Gar.  35.  formedon  in  the  discender,  the  reversion  and  rent  shall  not  barre 

the  demandant;  because  by  his  formedon  he  is  to  defeat  the 
reversion  and  rent,  Et  non  potest  adchici  exceptio  ejusdem  rei, 
mjus  petitur  dissolutio. 
r  pi  16  E.  3.  [p]  But  if  other  assets  in  fee  simple  doe  descend,  then  this 

Age,  45.  warrantie  in  law  and  assets  is  a  good  barre  in  the  formedon. 

18  B.  3.  8.  Rere  foure  things  are  to  be  observed  :  first,  that  no  warrantie 

31  E.3.  Gar.  29.  .^  ^^^  ^^^-^  ^^^^^  ^^^  collaterall  title,  but  is  in  nature  of  a  lineall 

warrantie  :  wherein  the  equitie  of  the  law  is  to  be  observed. 
(1  Rep.  10.)  Secondly,  that  an  expresse  warrantie  shall  never  binde  the 

heires  of  him  that  maketh  the  warrantie,  unlesse  (as  hath  beene 
said)  they  be  named :  as  for  example,  Littleton  here  saith  {U(/o 
et  hseredes  mei) ;  but  in  case  of  warranties  in  law,  in  many 
cases  the  heirs  shall  bee  bound  to  warrantie,  albeit  they  be  not 
.,   ...    .  named, 

fol  121  Thirdly,  that  in  some  cases  warranties  in  law  doe  extend  to 

Bustard's  case,     execution  in  value,  of  speciall  lands,  and  not  generally  of  lands 
descended  in  fee  simple,  as  you  may  see  at  large  in  my  Keports. 
M  45  E.  3.  [?]  Fourthly,  that  warranties  in  law  may  be  in  some  cases 

20  b.  '         created  without  deed,  as  upon  gifts  in  taile,  leases  for  life,  es- 

changes,  and  the  like. 

And  seeing  somewhat  hath  beene  said  out   of  Bracton  and 

other  antient  authors,  concerning  assignees,  it  is  necessarie  to 

shew  who  shall  take  advantage  of  a  warrantie,  as  assignee  by 

way  of  voucher,  to  have  recompence  in  value. 

Trl  14  E  3  W  I^  ^  °^^'^  infeoffe  A.  and  B.  to  have  and  to  hold  to  them 

Gar.  33."   '         and  to  their  heires,  with  a  clause  of  warrantie,  J9r«(/i'c<('s  A.  et  B. 

13  E.  1.  Gar.  83.  fi  eorum  hsercdibits  et  assi(/7iatis  :  in  this  case  if  A.  dieth,  and  B. 

surviveth  and  dieth,  and  the  heir  of  B.  infeoffeth  C.  he  shall 
Lib  5  fol  17  b  ^ouch  as  assignee,  and  yet  he  is  but  the  assignee  of  the  heire 
iJ  Spencer's''  '  of  one  of  them;  for  in  judgement  of  law  the  assignee  of  the 
case.  heire  is  the  assignee  of  the  ancestor,  and  so   the  assignee   of 

38  E.  3.21.  ^jjg  assignee  shall  vouch  in  infinitum,  within  these  words,  (his 

assignees.) 
[«]  12  E.  2.  [s]  If  a  man  infeoffeth  A.  to  have  and  to  hold  to  him,  his 

Vouch.  263.  heires  andassignes;  A.  infeoffeth  i?.  and  his  heires,  ii.  dieth, 
'^  ^-g^-  the  heire  of  B.  shall  vouch  as  assignee  to  A  :  so  as  heires  of 

13^E.  1.'  ib.  93.  assignees,  and  assignees  of  assignees,  and  assignees  of  heires,  are 
Lib.  5.  fol.  17.  within  this  word  (assignes);  which  seemed  to  be  a  question  in 
Spencer's  case.  Bracton'^  time.  And  the  assignee  shall  not  only  vouch,  but  also 
10  E.  3.  9.  have  a  loarrantia  cartas. 

14  E.  3.  Garr.  33.  „  ,^  „   ,„^ 
Bract,  ubi  sup.    9  E.  2.  Garr.  de  Chart.  30.     36  E.  3.  Gar.  1.     4  H.  8.  Dy.  1.  F.  N.  B.  135. 

If  a  man  doth  warrant  land  to  another  without  this  word 
(heires),  his  heires  shall  not  vouch  (N) :  and  regularly  if  he  war- 
rant land  to  a  man  and  his  heires,  without  naming  assignes,  his 
[<]  43  E.  3.  23.     assignee  shall  not  vouch.     [^]  But  if  the  father  be  infeofied  with 

Ante,  174.* a.  b.     Post.  390.  a.)     40  E.  3. 14.     24  E.  3.  36.     11  H.  4.  94.    39  E.  3  17. 

6  E.  3.  Age,  19.     PI.  Com.  418.  . 

^  warrantie 

(X)   77(6  doctrine  in  the  text  uaa  dteciteeed  in  the  recent  case  of  Doe  v.  Preatwidge, 
4  Maule  and  Selwyn,  178. 


L.  3.  C.  13.  Sect.  733.     Of  Warrantie.     [384.  b.  385.  a. 

warrantie  to  him  and  his  heires,  the  father  infeofifeth  his  eldest 
son  with  warrantie  and  dieth,  the  law  giveth  to  the  sonne  advan- 
tage of  the  warrantie  made  to  his  father,  because  by  act  in  law 
the  warrantie  betweene  the  father  and  the  sonne  is  extinct. 

But  note,  there  is  a  diversitie  between  a  warrantie  that  is  a 
covenant  reall,  which  bindeth  the  partie  to  yeeld  lands  or  tene- 
ments in  recompence,  and  a  covenant  annexed  to  the  land,  which 
is  to  yeeld  but  dammages,  for  that  a  covenant  is  in  many  cases 
extended  further  than  the  warrantie.     As  for  example  : 

[u]  It  hath  been  adjudged,  that  where  two  coparceners  made  ["]42  E.  3.  b. 
partition  of  land,  and  the  one  made  a  covenant  with  the  other,  ^^^  Fmchden. 

to  acquite  her  and  her  heires  of  a  suit  that  issued 
rSSS.]  JB^-out  of  the  land,  the  covenantee  aliened,  in  that  -n^^nclr's*" 
L     a.     J  case  the  assignee  shall  have  an  action  of  covenant,  case.) 

and  yet  he  was  a  stranger  to  the  covenant,  because 
the  acquittall  did  runne  with  the  land. 

[x]  A.  seised  of  the  mannor  of  D.  whereof  a  chappell  was  W  42  E.  3.  3.  a. 
parcell,  a  prior  with  the  assent  of  his  covent  covenanteth  by  deed  ,^'*^"^"  Paken- 
indented  with  A.  and  his  heires  to  celebrate  divine  service  in  2  ii.  ^.''e!^ 
his  said  chappell  weekely,  for  the  lord  of  the  said  mannor,  and  6  H.  4. 1  <fe  2. 
his  servants,  &c.     In  this  case  the  assignees  shall  have  an  action  i^"ife  i^rabson's 
of  covenant,  albeit  they  were  not  named,  for  that  the  remedie  fou^i?  'is 
by  covenant  doth  runne  with  the  land,  to  give  dammages  to  the  Spencer's  case, 
partie  grieved,  and  was  in  a  manner  appurtenant  to  the  mannor. 
[^]  But  if  the  covenant  had  beene  with  a  stranger  to  celebrate  r  t  2  H  4  6 
divine  service  in  the  chappell  of  A.  and  his  heires,  there  the  Hen.  llorne's 
assignee  shall  not  have  an  action  of  covenant ;  for  the  covenant;  <^^*^-    6  H.  4.  ]. 
cannot  be  annexed  to  the  mannor,  because  the  covenantee  was  gpeucers      ^^' 
not  seised  of  the  mannor.     See  in  Spencer  s  case  before  remem- 
bred,  divers  other  diversities  between  warranties  and  covenants 
which  yeeld  but  dammages. 

And  here  it  is  to  be  observed,  that  an  assignee  of  part  of  the 
land  shall  vouch  as  assignee.     [*]  As  if  a  man  make  a  feoffment  [»]  is  E.  3. 52. 
in  fee  of  two  acres  to  one,  with  warrantie  to  him,  his  heires  and  10  E.  3.  58. 
assignes,  if  he  make  a  feoffment  of  one  acre,  that  feoffee  shall  j.,  ^  j 
vouche  as  assignee ;  for  there  is  a  diversitie  betweene  the  whole  Counterpiea 
estate  in  part,  and  part  of  the  estate   in  the  whole,  or  of  any  de  Vouch.  42. 
part.     As  if  a  man  hath  a  warrantie  to  him,  his  heires,  and  as-  ]^  ^"  ^*     . 
eignes,  and  he  make  a  lease  for  life,  or  a  gift  in  taile,  the  lessee  5  e.  3.  ibid, 
or  donee  shall  not  vouch  as  assignee,  because  he  hath  not  the  178.    13  E.  3. 
estate  in  fee  simple  whereunto  the  warranty  was  annexed  ;  but  ^'''l;  ^^^• 
the  lessee  for  life  may  pray  in  aide,  or  the  lessee  or  donee  may  41  e.  3.  Vouch, 
vouch  the  lessor  or  donor,  and  by  this  means  he  shall  take  ad-  69  &  100. 
vantage  of  the  warranty.     But  if  a  lease  for  life,  or  a  gift  in  •^^^-  3.ibid.  96. 
taile  be  made,  the  remainder  over  in  fee,  such  a  lessee  or  donee  ^^^ j  this  diver- 
shall  vouch  as  assignee,  because  the  whole  estate  is  out  of  the  sitie  was  agreed, 
lessor,  and  the  particular  estate  and  the  remainder  doe  in  judge-  Hill.  14  Eliz. 
ment  of  law  to  this  purpose  make  but  one  estate.  Banco  which  I 

heard  and  observed 

[a]  If  a  man  infeoffee  three  with  warrantie  to  them  and  their  [„]  40  e.  3. 14. 
heires,  and  one   of  them  release  to  the   other  two,  they  shall  40  Ass.  5. 
vouch  ;  but  if  he  had  released  to  one  of  the  other,  the  warrantie  '^^  |J-  ^-  ^• 
had  been  extinct  for  that  part,  for  he  is  an  assignee.  ation  sans 

[i]  If  a  man  doth  warrant  land  to  two  men  and  their  heires,  licence,  31. 
and  the  one  make  a  feoffment  in  fee,  yet  the  other  shall  vouch  ?,?.'/p®'„ 
for  his  moitie.     If  a  man  at  this  day  be  infeoffed  with  warrantie  petin.  46. ' 

7  B.  3.  35.    46  E.  3,  4. 

Vol.  II.— 47  to 


385.  a.  385.  b.]      Of  Warrantie.     L.  1 .  C.  13.  Sect.  733. 

to  him,  his  heires,  and  assignes,  and  he  make  a  gift  in  taile,  the 
remainder  in  fee,  the  donee  make  a  feoffment  in  fee,  that  feoffee 
(SeeVaugh.         shall  not  vouch  as  assignee,  because  no  man  shall  vouch  as  as- 
<i88.)  signee  but  he  that  commeth  in,  in  privitie  of  estate ;  but  he  must 

vouch  his  feoffor,  and  he  to  vouch  as  assignee,  but  such  an  as- 
signee may  rebutte.  If  the  warrantie  be  made  to  a  man  and  his 
heires  without  this  word  (assignes),  yet  the  assignee,  or  any 
tenant  of  the  land  may  rebutte.  And  albeit  no  man  shall  vouch 
or  have  a  warrantia  cartae,  either  as  partie,  heire,  or  assignee, 
but  in  privitie  of  estate,  yet  any  that  is  in  of  another  estate,  be  it 
by  disseisin,  abatement,  intrusion,  usurpation,  or  otherwise,  shall 
rebutte  by  force  of  the  warrantie,  as  a  thing  annexed  to  the  land, 

[c]  38  E.  3. 21.  which  sometime  was  doubted  [c]  in  our  bookes.  But  herein  is  a 
26  E.  3.  56.  diversitie  to  be  observed,  when  in  the  cases  aforesaid  he  that  re- 
Se'^mour^^'case  butteth  claimeth  under  the  warrantie;  and  when  he  that  would 
TK  3.  34,  35.  '  rebutte  claimeth  above  the  warranty,  for  there  he  shall  not  re- 
8  E.  3. 10.  butte.  And  therefore  if  lands  be  given  to  two  brethren  in  fee 
10  E  3*  42  simple,  with  a  warranty  to  the  eldest  and  his  heires,  the  eldest 
45  E.  3!  18.*  dieth  without  issue,  the  survivor  albeit  he  be  heire  to  him,  yet 
10  Ass.  5.  shall  he  neither  vouch  nor  rebutte,  nor  have  a  warrantia  cartae 
22  Ass"  39  88  because  his  title  to  the  land  is  by  relation  above  the  fall  of  the 
31  Ass.  13.     *     warrantie,  and  he  commeth  not  under  the  estate  of  him  to  whom 

the  warrantie  is  made,  as  the  disseisor,  &c.  doth. 

[d]  Lib.  3.  fol.  [d]  If  a  man  make  a  gift  in  taile  at  this  day,  and  warrant  the 
62,  63.  Lincolne  land  to  him,  his  heires  and  assignes,  and  after  the  donee  make  a 
College  case.       feoffement  and  dieth  without  issue,  the  warrantie  is  expired  as  to 

any  voucher  or  rebutter,  for  that  the  estate  in  taile  whereunto  it 

was  knit  is  spent;  otherwise  it  is,  if  the  gift  and  feoffement  had 

beene  made  before  the  statute  of  donis  conditionalibus  :  for  then 

both  the  donee  and  feoffee  had  a  fee  simple ;   and  so  are  our 

bookes  to  be  intended  in  this  and  the  like  cases. 

[e]l4  E.  3.  [e]  If  A.  be  seised  of  lands  in  fee,  and  B.  releaseth  unto  him, 

Garr.108.  q^  confirmeth  his  estate  in  fee  with  warrantie  to  him,  his  heires 

^^  ■  and  assignes  ;  all  men  agree  this  warrantie  to  be  good  :  but  some 

have  holden,  that  no  warrantie  can  be  raised  upon  a  bare  release 

or  confirmation  without  passing  some  estate  or  transmutation  of 

[/]ll  H.  4.  22.    possession.     [/]  But  the  law  as  it  appeareth  by  Littleton  him- 

10  E.  3.  52."     '    selfe,  is  to  the  contrary,  and  that  both  the  party,  and  (as  some 

21  E.  3.  27.  (Joe  hold)  his  assignee  shall  vouch ;  but  he   that  is  vouched  in 

]it' &7h>'!^^'     *bat  case  must  be  present  in  court,  and  ready  to  enter  into  the 

warranty  and  to  answer,  and  the  tenant  must  shew  forth  the 

deed  of  release  or  confirmation  with   warrantie,  to  the  intent 

the  demandant  may  have  an  answer  thereunto,  and  either  deny 

the  deed,  or  avoid  it ;    for  that  at  the  time  of   the  confirmation 

made,  he  (A)  to  whom  it  was  made  had  nothing  in  the  land,  &c. 

for  otherwise  the  demandant  may  counter  plead  the  voucher  by 

W.  1.  cap.  40.       the  statute  of  W.  1.  viz.  that  neither  vouchee  nor  any 

of  his  ancestor  had  any  JS^" seisin  whereof  he  might  p385."| 


Vide  20  E.  1. 

Statute  de  vo 


nKike  a  feoffement  (B).     And  this  is  grounded  upon   |_     b. 


cat.  ad  warrant,  the  said  statute  of  W.  I,  thewords  wherof  be,  S'ilneit 


(A)  Here  "to"  seems  to  he  printed  hy  mistake  imtead  of  "  by."     See  Mr.  Bitso's  Intr. 
.  121. 

(B)  Yet  hy  20  E.  1.  {statute  of  vouchers),  which  recites  that  the  averment  thereinmentioned 
(being  the  (tnrment  in.  the  counterpha  spoken  of  in  the  text)  had  not  been  used  to  be  ad- 
mitted unliss  the  party  vouched  had  been  absent,  hy  reason  of  the  statute  of  W.  1.  above 
cited,  it  was  ordained,  that  such  averment  should  be  admitted,  whether  the  party  vouched 
were  absent  or  present,  without  any  respect  had  unto  his  presence  or  absence. 


L.  3.  C.  13.  Sect.  734.        Of  Warrantie.  [385.  b. 

son  garrantor  en  present  (1),  que  luy  voile  garranter  de  son  gree, 
et  maintenant  enter  en  respons,  otherwise  the  tenant  must  be 
driven  to  his  warrantia  cartce. 

Ig]  Bui  a  warrantie  of  it  sclfe  cannot  enlarge  an  estate;  as  if  [3]  22  H.  6. 15. 
the  lessor  by  deed  release  to  his  lessee  for  life,  and  warrant  the  i^  H.  6. 73. 
land  to  the  lessee  and  his  heires,  yet  doth  not  this  enlarge  his  2  jj  4  13  * 
estate.  '  41 E.  3.  Garr.  15. 

43  E.  3.  17. 

43  Ass.  42.     12  Ass.  17.     12  E.  3.  Taile,  3.     22  E.  4.  16.  b.     44  E.3.  10. 

43  Ass.  Bassingborn's.     Ass.  Lib.  10.  fol.  97.  Seymour's  case, 

[7t]  If  a  man  make  a  feoffment  in  fee  with  warrantie  to  him,  W  Lib.  3. 
his  heires  and  assignes  by  deed  (as  it  must  be),  and  the  feoffee  ^'j,^^'  ^'°*'°^°* 
enfeoffeth  another  by  paroU,  the  second  feoffee  shall  vouche,  or 
have  a  warrantia  cartce  (as  hath  been  said)  as  assignee,  albeit 
he  hath  no  deed  of  the  assignment,  because  the  deed  com- 
prehending the  warrantie,  doth  extend  to  the  assignees  of  the 
land;  and  he  is  a  sufficient  assignee,  albeit  he  hath  no  deed. 

[i]  If  a  man  infeoffe  two,  their  heires  and  assigns,  and  one  of  [i]  29  E.  3.  70. 
them  make  a  feoffement  in  fee,  that  feoffee  shall  not  vouch  as  P  ^■.^-  Joi'^'^er 

,rt^  '  in  action,  1. 

assignee  (2).  ^       _  ^  il  E.  4. 8. 

If  a  man  make  a  feoffement  in  fee  to  A.  his  heires  and  assignes, 

A.  infeoffeth  B.  in  fee,  who  re-infeoffeth  A.  he  or  his  assignes 
shall  never  vouche,  for  A.  cannot  be  his  owne  assignee.     But  if 

B.  had  infeoffed  the  heire  of  A.  he  may  vouche  as  assignee;  for 
the  heire  of  A.  may  be  assignee  to  A.  inasmuch  as  he  claimeth 
not  as  heire. 

[/*;]  If  a  man  make  a  feoffement  by  deed  of  lands  to  A.  to  have  [k]  14  H.  4.  3. 
and  to  hold  to  him  and  his  heires,  and  binde  him  and  his  heires 
to  warrant  the  land  in  forma  pradictd;  this  warrantie  shall 
extend  to  the  feoffee  and  his  heires;  but  if  he  had  warranted 
the  land  to  the  feoffee  the  warrantie  had  not  extended  to  his 
heires,  except  the  words  had  beene  to  him  and  his  heires. 

If  a  man  letteth  lands  for  life,  the  remainder  in  taile,  the  (Ant.  20.  b.) 
remainder  eadem  formd,  this  is  a  good  estate  taile,  quia  idem 
semper  re/ertur  proximo  p7'a:c€dendi (S). 


Sect.  734. 

ALSO,  if  tenant  in  taile  be  seised  of*  lands  devisable  by  testament 
after  the  custom,  ^c.  and  the  tenant  in  the  tayle  alieneth  the  same  tene- 
ments to  his  brother  in  fee  (et  le  tenant  en  tayle  alien  f  mesmes  les  tene- 
ments a  son  frere  en  fee),  and  hath  issue,  and  dieth,  and  after  his  brother 
deviseth  by  his  testament  the  same  tenements  to  another  infee^  and  bindeth 

him 

*  lands — tenements,  L.  and  M.  and     f  mesnes  not  in  L.  and  M.  or  Roh. 
Roh. 

(1)  i.  e.  if  he  have  not  his  warrantor  present. 

(2)  The  other  may  vouch  for  his  moiety,  as  is  observed  in  the  preceding 
page;  but  if  they  make  partition,  both  have  lost  it.     Hob.  25. — [Note  334.] 

(3)  A  man  enfeoffeth  three  by  deed,  and  warranteth  the  land  to  them,  et 
cuilibet  eorum,  this  is  a  joint  warranty,  because  the  estate  or  interest  was  joint; 
but  is  the  estates  were  several,  the  warranty  would  be  several.  5  Rep.  19. — 
[Note  335.] 


385.  b.  386.  a.]     Of  Warrantie.      L.  3.  C.  13.  Sect.  734. 

Mm  and  his  heires  to  warrantie,  S^c.  and  dieth  without  issue;  it  seemeth 
that  this  ivarrantie  shall  not  barre  the  issue  in  the  taile,  if  hee  will  sue  his 
writ  o/formedon,  because  that  this  warrantie  shall  not  descend  to  the  issue 
in  tayle,  in  so  much  as  the  uncle  of  the  issue  was  not  bound  to  the  same 
warrantie  in  his  lifetime:  neither  could  he  warrant  the  tenements  in  his 
life,  insomuch  as  the  devise  could  not  take  any  execution  or  effect  until 
after  his  decease  (4)  (pur  ceo  que  cest  garrantie  ne  discendera  my  al  issue 
en  le  tayle,  entant  que  le  uncle  del  issue  ne  fuit  my  oblige  a  le  garrantie 
en  sa  vie:  ne|  que  il  ne  puissoit  garranter  les  tenements  en  sa  vie, 
entant  que  le  devise  ne  puissoit  prender  ascun  execution  ou  effect,  forsque 
apres  son  decesse).  And  insomuch  as  the  uncle  in  his  life 
was  not  j|@°*  held  to  warrantie,  such  warrantie  may  not  de-  rSSe.! 
scend  from  him  to  the  issue  in  the  tayle,  ^c.  for  nothing  can  \_  ^-  \ 
descend  from  the  ancestour  to  his  heire,  unlesse  the  same  were 
in  the  ancestour  (1). 

(6  Rep.  33.  TTERE   our   author   declareth   one  of  the  maximes  of  the 

2  Cro.  570.  XI  common  law,  that  the  heire  shall  never  be  bound  to  any 

10  Rep.  95.)        express  wrrrantie,  but  where  the  ancestor  was  bound  by  the 
same  warranty;  for  if  the  ancestor  were  not  bound,  it  cannot 
descend  upon  the  heire,  which  is  the  reason  here  yeelded  by 
[I]  31  E.  1.  Littleton.     [l'\  If  a  man  make  a  feoffment  in  fee,  and  binde  his 

ni^h^'m  heires  to  warrantie,  this  is  void  by  the  warrant  of  this  maxime, 

Ant.  213.  h.)  ^s  to  the  heire,  because  the  ancestor  himselfe  was  not  bound. 
Also,  if  a  man  binde  his  heires  to  pay  a  summe  of  money,  this 
Bracton,  li.  2.  is  voide.  And  of  the  other  side,  if  a  man  binde  himselfe  to 
fol.  37.  238.  warranty,  and  binde  not  his  heires,  they  be  not  bound ;  for  he 
Britt.  fo.  106.  .  ^^g^  g^^^  ^g  ^^  appeareth  before.  Ego  et  hceredes  mei  warrantiza- 
[m]  Fleta,  lib.  2.  bimus,  &c.  [m]  And  Fleta  saith,  Nota  quod  hoeres  non  tenetur  in 
cap.  65.  (N)  Anglid  ad  debita  antecessoris  reddenda,  nisi  per  antecessorem  ad 
Britton,  fo.  65.  b.  Jiocfuerit  obligatus,  prceterqudm  debita  regis  tantum :  A  fortiori 
(4  Rep  80  ^^  ^^^^  '^^  warrantie,  which  is  in  the  realtie. 

Ante  209.  a.)  But  a  warrantie  in  law  may  binde  the  heire,  although  it  never 

bound  the  ancestor,  and  may  be  created  by  a  last  will  and  testa- 
[n]  18  E.  3.  8.  ment.  [«]  As  if  a  man  devise  lands  to  a  man  for  life  or  in  taile 
reserving  a  rent,  the  devisee  for  life  or  in  taile  shall  take  advan- 
tage of  this  warrantie  in  law,  albeit  the  ancestor  was  not  bounden, 
and  shall  binde  his  heires  also  to  warrantie,  although  they  be  not 
named.  Also  an  express  warrantie  cannot  be  created  without 
deed,  and  a  will  in  writing  is  no  deed,  and  therefore  an  expresse 
warrantie  cannot  be  created  by  will. 

Sect. 

I  que  il  ne  not  in  L.  and  31.  or  RoTi. 

(N)  Vid.  Fleta,  lib.  2.  cap.  62.  §  10. 

(4)  Upon  a  similar  principle  it  was  held,  that  a  person  could  not  devise 
land  in  frankmarriage,  because  the  donee  could  not  hold  of  the  donor.  Ant. 
21.  b.— [Note  336.]  .       v    j 

(1)  It  is  a  general  rule,  that  the  heir  cannot  take  any  thing  by  descent 
when  the  ancestor  is  secluded  from  taking.  Ant.  99.  b.— If  a  father  and  his 
heir  apparent  join  in  a  warranty,  the  heir  is  doubly  bound  by  his  own  war- 
ranty, and  as  heir  to  his  father.     Moore,  20. — [Note  337.] 


L.  3.  C.  13.  Sect.  735-36.    Of  Warrantie.    [386.  a.  386.  b. 


Sect.  735. 

jj^LSO,  a  warranty  cannot  goe  according  to  the  nature  of  the  tenements 
by  the  custome,  ^c.  hut  onely  according  to  the  forme  of  the  common 
law  (un  garrantie  ne  poit  aler  *  solonque  la  nature  des  tenements  per 
le  custome,  &c.  mes  tantsolement  solonque  le  forme  del  common  ley). 
For  if  the  tenant  in  taile  he  seised  of  tenements  in  horough  English^  where 
the  custome  is,  that  all  the  tenements  within  the  same  borough  ought  to 
descend  to  the  youngest  sonne,  and  he  discontinueth  the  taile  with  war- 
ranty, Sfc.  and  hath  issue  two  sonnes,  and  dieth  seised  of  other  lands  or 
tenements  in  the  same  borough  in  fee  simple  to  the  value  or  more  of  the 
lands  entailed,  Sj-c.  yet. the  youngest  sonne  shall  have  a  formedon  of  the 
t  lands  tailed,  and  shall  not  be  barred  by  the  warrantie  of  his  father, 
albeit  assets  descended  to  him  in  fee  simplefrom  his  said  father, 

t386."|  J|@°*  according  to  the  custome,  S^c.  because  the  warranty  des- 
"•     J  cendeth  upon  his  elder  brother  who  is  in  full  life  %,  and  not 
upon  the  youngest.  \\  And  in  the  same  manner  is  it  of  collaterall 
warranty  made  of  such  tenements,  where  the  warranty  desc'endeth  upon 
the  eldest  sonne,  ^c.  this  shall  not  harre  the  younger  son,  ^c. 


Sect.   736.  (8  Rep.  86.) 

TN  the  same  manner  is  it  of  lands  in  the  county  of  Kent,  that  are 
called gavelkinde,  which  lands  are  dividable  betweene  the  brothers,  ^c. 
according  to  the  custome  .j. ;  if  any  such  warranty  be  made  by  his  an- 
cestor, such  warrantie  shall  descend  onely  (B)  to  the  heire  tvhich  is  heire 
at  the  common  laiv,  §  that  is  to  say,  to  the  elder  brother,  according  to  the 
conusance  of  the  common  law,  and  not  to  all  the  heires  that  are  heires 
of  such  tenements  according  to  the  custome  ^. 

HEREUPON  a  diversitie   is  to   be  observed  betweene   the  Vid.'Sect.  603. 
lien  reall,  and  the  lien  personall,  for  the  lien  reall,  as  the  Ig  Rep.  25  ) 
■warrantie,  doth  ever  descend  to  the  heire  at  the  common   law;  [u]  11  E.  3. 
[«]  but  the  lien  personall  doth  binde  the  speciall   heires,  as  all  Det.  7. 
the  heires  in  gavelkind,  and  the  heir  on  the  part  of  the  mother, 
as  hath  beene  said. 

[o]  If  two  men  make  a  feoffment  in  fee  with  a  warranty,  and  [o]  17  E.  3. 
the  one  die,  the  feoffee  cannot  vouch  the  survivor  only,  but  Joint.  41. 

■"  16H.  7.  13. 

29  E.  3.  46.  12  H.  7.  3.  22  E.  3.  1.  17  E.  3.  8.  30  E.  3.  40.  19  H.  6.  55. 
Lib.  3.  fol.  14.  Matthew  Herbert's  case.  (I  Leon.  322.  March.  125.  Allen,  41. 
Savil.  692.     Clay.  3.) 

the 

*  solonque — sans,  L.and  M.and  Roh.  \.  &c.  added  in  L.  and  M.  and  Roh. 

■\  lands,   tenements,   L.   and    M.  and  ^  that  is  to  say,  to  the  elder  brother, 

Roh.  according  to  the  conusance  of  the  com- 

I  (fee.  added  in  L.  and  M.  and  Roh.  mon  law,  not  in  L.  and  M.  or  Roh. 

II  And  not  in  L.  and  M.  or  Roh.  ^  &c.  added  in  L.  and  M.  and  Roh. 

(B)  See  ante  note  A,  on  Seet.  601. 


386.  b.  387.  a.]   Of  Warrantie.  L.  3.C.  13.  Sect.  737-3^. 

the  heire  of  him  that  is  dead  also  (1);  but  otherwise,  if  two 
joyntly  binde  themselves  in  an  obligation,  and  the  one  die,  the 
survivor  shall  be  charged. 


Sect.  737. 

A  LSO,  if  tenant  in  taile  lath  issue  ttvo  daughters  hy  divers  venters^ 
and  dieth,  and  the  daughters  enter,  and  a  stranger  disseiseth  them  of 
the  same  tenements,  and  one  of  \  them  releaseth  hy  her  deed  to  the  dis- 
seisor all  her  right,  and  binde  her  and  her  heirs  to  warrantie, 
and  die  withoutissue:  in  this  case  the  ]^^^sister  which surviveth  ["387. l 
may  well  enter,  and  oust  the  disseisor  of  all  the  tenements,  be- L  a.  J 
cause  such  ivarrantie  is  no  discontinuance  nor  collaterall  war- 
rantie to  the  sister  that  surviveth,  for  that  they  are  of  halfe  blood,  and 
the  one  cannot  be  heire  to  the  other,  according  to  the  course  of  the  eommon 
law.  But  otherwise  it  is,  where  there  be  daughters  of  tenant  in  tail 
by  one  venter. 

''rHE  reason  of  this  is  in  respect  to  the  halfe  blood,  whereof 

-I    suflBcient  hath  been  said  in  the  first  booke,  in  the  Chapter 

of  Fee  Simple. 
(Ante  12.  a.  Two  brothers  be  by  demy  venters  ;  the  eldest  releaseth  with 

14  a.  &  b.)  warrantie  to  the  disseisor  of  the  uncle,  and  dieth  without  issue, 

the  uncle  dieth,  the  warrantie  is  removed,  and  the  younger 

brother  may  enter  into  the  land. 


Sect.  738. 

ALSO,  if  tenant  in  taile  letteth  the  lands  to  a  man  for  terme  of  life, 
the  remainder  to  another  in  fee  (si  tenant  en  taile  lessa  les  tenements 
a  un  *  home  pur  terme  de  vie,  le  remainder  a  un  auter  en  fee),  and  a 
collaterall  ancestor  confirmeth  the  state  of  the  tenant  for  life,  and  bindeth 
him  and  his  heires  to  ivarrantie  for  terme  of  the  life  of  the  tenant  for 
life,  and  dieth,  and  the  tenant  in  taile  hath  issue  and  dies  ;  now  the  issue 
is  barred  to  demand  the  tenements  by  writ  of  formedon  during  the  life 
of  tenant  for  life,  because  of  the  collaterall  ivarrantie  descended  upon 
the  issue  in  taile.  But  after  the  decease  of  the  tenant  for  life,  the  issue 
shall  have  a  \.  writ  of  formedon,  ^c. 

HERE 

^  them — the  daughters,  L.  and  M.         *  home   not  in  L.  and  M.  or  Roh. 
and  Roh.  \.  v;rit  of  not  in  L.  and  M.  or  Roh. 


(1)  This  seems  to  be  contradicted  in  Moore,  20.  where  it  is  said,  that  if  two 
are  vouched,  and  one  of  them  makes  default,  the  grand  cape  ad  valentiam  shall 
issue  against  him  who  made  the  default ;  and  if  one  of  them  dies,  the  heir  and 
the  survivor  of  them  may  be  vouched,  or  the  survivor  of  them  only,  at  the 
election  of  him  who  hath  the  warranty. — [Note 338.] 


L.  3.  C.  13.  Sect.  739.     Of  Warrantie.       [387.  a.  387.  b. 

HERE  it  appeareth,  that  a  warrantie  may  be  raised  by  a  con-  Vide  Sect.  733. 
firmation  which  transferreth  neither  estate  nor  right,  where-  ^nt%85  ) 
of  sufficient  hath  been  said  before. 

"  To  warrantie  for  term  of  the  life,  &c."     [p]  This  proveth  [p]  38  E.  3. 14. 
that  a  warrantie  may  be  limited,  and  that  a  man  may  warrant  ^  ^'if 'ay 
lands  aswell  for  terrue  of  life  or  in  taile,  as  in  fee(l). 

If  tenant  in  fee  simple  that  hath  a  warrar.tie  for  life  either  by  (4  Rep.  80, 
an  expresse  warrantie  or  by  dedi  be  impleaded   and  vouch,  bee  :^°^*  ^^^' , 
shall  recover  a  fee  simple  in  value,  albeit  his  warrantie  were  but 
for  terme  of  life,  because  the  warrantie  extended  in  that  case  to 
the  whole  estate  of  the  feoffee  in  fee  simple  (2) ;  but  in  the  case 
that  Littleton  here  putteth,  the  tenant  for  life  shall  recover  in  (2Cro.  453.) 
value  but  an  estate  for  life,  because  the  warrantie  doth  extend 
to  that  estate  only. 

"  A  writ  offormedon,  &c."  Here  is  implied  that  a  (F.  N.  B.  211.  b. 
['387.1  collaterall  warrantie  giveth  no  right,  0^  but  shall  217. b. 219.  e.) 
|_    b.     J  barre  only  for  life,  and  after  the  partie  is  restored  to 
his  action. 
It  is  also  to  bee  observed,  that  a  warrantie  may  descend  to  the 
hieres  of  him  that  made  it  during  the  life  of  another. 


Sect.   739.  (9  Rep.  120.) 

AND  upon  this  I  have  heard  a  reason,  that  this  case  will  prove  another 
case,  viz.  if  a  man  letteth  his  lands  to  another,  to  have  and  to  hold 
to  him  and  to  his  heirs  for  terme  of  another's  life,  and  the  lessee  dieth 
living  celuy  a  que  vie,  &c.  and  a  stranger  entreth  into  the  land  that  the 
heire  of  the  lessee  may  put  him  out,  f  J*<?.  because  in  the  case  next  afore- 
said, inasmuch  as  a  man  may  hinde  him  and  his  heires  to  warrantie  to 
tenant  for  life  only,  during  the  life  of  the  tenant  for  life  (durant  la  vie  le 
tenant  a  J  terme  de  vie),  and  this  ivarrantie  descendeth  (B)  to  the  heire 
of  him  which  made  the  ivarrantie,  the  which  warrantie  is  no  warrantie 
of  inheritance,  but  only  for  terme  of  another  s  life  :  by  the  same  reason 
where  laiids  are  let  to  a  man,  to  have  and  to  hold  to  hiin  and  his  heires 
for  terme  of  another's  life,  if  the  \\  lessee  die  living  celuy  a  que  vie,  his 
heires  shall  have  the  lands  livitig  celuy  a  que  vie,  &c.  For  they  have  said 

that 

f  &c.  not  in  L.  and  M.  or  Roh.  ||  lessee^nther,  L.  and  M.  and  Roh. 

j  terme  not  in  L.  and  31.  or  Roh. 

(B)  See  ante  note  A.  on  Sect.  601. 

(1)  From  this  it  apears,  that  the  warranty  ceases  on  the  expiration  of  the 
estate  to  which  it  is  anexed.  In  Smith  v.  Tyndal,  Salk.  685,  686,  it  was 
resolved  that  no  warranty  extinguishes  a  right,  but  only  binds  or  bars  it  so 
long  as  the  warranty  continues  in  force ;  for  if  the  warranty  be  released,  the 
ancient  right  revives. — [Note  339.] 

(2)  Though  the  warranty  be  temporary,  yet  the  thing  warranted  and  to  be 
recovered  is  perpetual ;  for  it  is  a  warranty  of  a  fee,  though  not  a  warranty  in 
fee.     Hob.  126.— [Note  840.] 


387.  b.  388.  a.]       Of  Warrantie.     L.  3.  C.  13.  Sect.  740. 

that  if  a  man  grant  an  annuitie  to  another  to  have  and  to  take  to  him 
and  his  heires  for  terme  of  another's  life,  if  the  grantee  die,  ^e.  that 
after  §  his  death  his  heire  shall  have  the  annuitie  during  the  life  o/celuy 
a  que  vie,  &c.     Quaere  de  ista  materia. 

0^"  T  HA  VE  heard  a  reason."     Here  our  student  rSSS.l 
is  taught  after  the  example  of  our  author,  to  [_    a.     J 
observe  everie  thing  that  is  worth  the  noting. 

"  T/'a  man  letteth  his  lands  to  anotlier,  &c."  This  case  iswith- 
[q\  17  E.  3.48.  out  question,  [§']  that  the  heire  of  the  lessee  shall  have  the  land 
1?  H  A  49"  *^  prevent  an  occupant.    And  so  it  is  (as  Littleton  here  saith)  in 

7  H.  4.  46.  case  of  an  annuitie,  or  of  any  other  thing  that  lieth  in  grant, 

8  H.  4. 15.  whereof  there  can  i)e  no  occupant.  And  of  this  somewhat  hath 
Py- ^  J-'-  253.      i)een  said  in  the  Chapter  of  Discents  (1). 

27  H.  8.     21  H.  8.  tit.  Estat.  Br.  50.     19  E.  3.  tit.  Account.  56.    33  Ass.  p.  17. 
22  H.  6.  33.    39  E.  3.  37.    Vide  Sect.  387.     (Ante  41.  b.) 


Sect.  740. 

J)  UT  ivhere  such  lease  or  grant  is  made  to  a  man  and  to  his  heires  for 
terme  of  year es,  in  this  case  the  heire  of  the  lessee  or  the  grantee  shall 

not  after  the  death  of  the  lessee  or  the  grantee  have  that  ivhich  is  so  let 
or  granted,  because  it  is  a  chattell  reall,  and  *  chattels  realls  hy  the  com- 
mon law  shall  come  to  the  executors  of  the  grantee,  or  of  the  lessee,  and 
not  to  the  heire.'f 

11  E.  3.  tit.  TTEIIE  is  a  generall  rule,  that  chattels  reals  as  well  as  chattels 

Ass.  88.  J_X  personals  shall  goe  to  the  executors  or  administrators  of  the 

10  El  i)y.  276.  lessee,  and  not  to  his  heires.  For  as  estates  of  inheritance  or 
(9  Rep.  86.  freehold  descendible  shall  go  to  the  heire,  so  chattels,  as  well  reall 
5  Rep.  25.  33.)  g^g  personall  shall  goe  to  the  executors  or  administrators. 

[r]  24  E.  3.  26.  [^]  But  if  the  king's  tenant  by  knight's  service  in  copite  be 
F.  N.  B.  33.  b.     seised  of  a  mannor,  whereunto  an  advowson  is  appendant,  and  the 

A  *  OA  of'  church  become  void,  the  tenant  dieth,  his  heire  within  ase,  the 
Ant.  90.  Sect.        i  •  ,    n  i         i         i  i  i  ^ 

125.  king  shall  present  to  the  church,  and  not  the  executor  or  ad- 

ministrator :  but  if  the  land  be  holden  of  a  common  person,  in 
that  case  the  executor  shall  present,  and  not  the  gardeine. 
[«]  40  E.  3. 14.  [s]  If  a  bishop  hath  a  ward  fallen  and  dieth,  the  king  shall  not 

have  the  ward  nor  the  successor,  but  the  executor,  and  the  ward 
shall  be  assets  in  his  hands.     So  it  is  of  the  heriot,  releefe,  and 
[0  9  H.  6.  58.      the  like.     [<]  But  if  a  church  become  void  in  the  life  of  a  bishop, 

11  H.  4.  7.  and  so  remaine  untill  after  his  decease,  the  king  shall  present 

thereunto,  and  not  the  executor  or  administrator ;  for  nothing 
can  be  taken  for  a  presentment,  and  therefore  it  is  no  assets. 

Sect. 

§  Ms  death  not  in  L.  and  M.  or  Roh.         f  &c.  added  in  L.  and  M.  and  Roh. 
*  all  added  in  L.  and  M.  and  Roh. 

(1)  But  several  alterations  have  been  made  in  the  law  of  occupancy  by 
statutes  passed  since  sir  Edward  Coke's  time.     See  ant.  41.  b.  note.  5. 


L.  3.  C.  13.  Sect.  741.     Of  Warrantie.     [388.  a.  388.  b. 


Sect.  Ul. 


ALSO,  in  some  eases  it  may  bee,  that  albeit  a  collaterall  warrantie  be 
made  in  fee,  ^c.  yet  such  a  warrantie  may  be  defeated  and  taken 
away.  As  if  tenant  in  taile  discontinue  the  taile  in  fee,  and  the  discon- 
tinuee  is  disseised,  and  the  brother  of  the  tenant  in  taile  releaseth  by  his 
deed  to  the  disseisor  all  his  right,  ^c.  with  warrantie  in  fee,  and  dieth 
without  issue,  and  the  tenant  in  taile  hath  issue  and  die;  now  the  issue 
is  barred  of  his  action  by  force  of  the  collaterall  warrantie  descended 
upon  him.  But  if  afterwards  the  discontinuee  entreth  upon  the  disseisor, 
then  may  the  heire  in  taile  have  well  his  action  of  formedon,  &c.  because 
the  warrantie  is  taken  away  and  defeated,  for  when  a  warrantie  is  made 
to  a  man  upon  an  estate  which  hee  then  had,  if  the  estate  be  defeated, 
the  warrantie  is  defeated  (1). 

"  A  ND  dieth  without   issue,  &c."     Here  (as   before  in  this  Vide  Sect.  707. 

■^  Chapter  hath  been  noted)  the  collaterall  warrantie  doth 

descend  upon  the  issue  in  taUe,  before  any  right  doth  descend 

unto  him,  wherein  this  diversitie  is  to  bee  observed.  Where  the 

right  is  in  esse  in  any  of  the  ancestors  of  the  heire  at 

t 388.1  the  time  of  the  J8@°^  disceat  of  the  collaterall  warran- 
b.      J  tie,  there  albeit  the  warranfe  descend  first,  and  after 
the  right  doth  descend;  the  collaterall  warrantie  shall 
binde,  as  here  in  this  case  of  our  author  expressly  appeareth. 
But  where  the  right  is  not  in  esse  in  the  heire,  or  any  of  his  an-  (12  Rep.  95.) 
cestors,  at  the  time  of  the  fall  of  the  warrantie,  there  it  shall 
not  binde.     [?/]  As  if  lord  and  tenant  be,  and  the  tenant  make  [«]  7  E.  3.  48. 
a  feoflFement  in  fee  with  warrantie,  and  after  the  feoffrir  purchase  30  u.  .     . 
the  seigniore,  and  after  the  tenant  ces.e,  the  lord  shall  have  a 
cessavit ;  for  a  warrantie  doth  extend  to  rights  precedent,  and 
never  to  any  right  thatcommenceth  after  the  warrantie  :  whereof 
more  shall  be  said  in  this  Section.  Also  a  warrantie  shall  never 
barre  any  estate  that  is  in  possession,  reversion  or  remainder,  (10  Rep.  95. 
that  is  not  devested,  displaced,  or  turned  to  a  right  before,  or  at 
the  time  of  the  fall  of  the  warrantie. 

[w]  If  a  lease  for  life  be  made  to  the  father,  the  remainder  to  [»c]  Lib.  1.  fol. 
his  next  heire,  the  father  is  disseised  and  releaseth  with  warran-  ^^^g^''"^®'^'^ 
tie  and  dieth ;  this  shall  barre  the  heire,  although  the  warrantie 
doth  fall,  and  the  remainder  commeth  in  esse  at  one  time. 

r  ?/l  If  there  be  father  and  sonne,  and  the  sonne  hath  a  rent  ser-  [y]  "^f^P"  ^E.t. 
vice,  suit  to  a  mill,  rent  charge,  rent  secke,  common  ot  pasture,  3^  ^^^^  ^g^ 

or 


(1)  In  the  former  cases  put  by  Littleton,  the  warranty  determined  upon  the 
natural  expiration  of  the  estate  to  which  it  was  annexed  :  here  it  determines 
by  the  estate  being  defeated.  But  if  an  estate  be  bound  by  a  warranty,  and 
afterwards  the  estate  to  which  the  warranty  is  annexed  be  defeated  as  to  a  par- 
ticular estate  only,  the  warranty  shall  not  be  defeated.  As  if  tenant  for  life, 
remainder  to  A.  be  disseised,  and  an  ancestor  of  A.  releases  to  the  disseisor 
with  warranty  and  dies,  and  afterwards  tenant  for  life  enters  or  recovers,  yet 
the  remainder  will  be  bound  by  the  warranty.  Sec  2  Rol.  Abr.  740.  1.  40 
741.  I.  5.     And  see  Com.  Dig.  tit.  Garranty,  {I.  5.)— [Note  341.] 


97. 


22  Ass.  36. 
41  Ass.  6. 

23  E.  3. 
tit.  Gar.  74. 
Lib.  10.  fol. 
E.  Sej'mour's 
case. 

(9  Rep.  106.) 


[*J  45  E.  3.  31. 
21  H.  7.  11. 

Vide  Sect.  698. 


[a]  21  E.  4.  26 
21  H.  7.  9. 
3  H.  r.  4. 
7  H.  4.  17. 
30  H.  8. 
Dier,  42. 
30  E.  3.  30. 
9  E.  3.  78. 
45  E.  3. 
Voucher,  72. 
F.  N.  B.  125. 
14  H.  8.  6. 
(Ant.  366.  b. 
Moor,  56.) 


388.  b.  389.  a.]      Of  Warrantie.     L.  3.  C.  13.  Sect.  741. 

or  other  profit  apprender  out  of  the  land  of  the  father,  and  the 
father  maketh  a  feoffment  in  fee  with  warrantie,  and  dieth,  this 
shall  not  barre  the  sonne  of  the  rent,  common,  or  other  profit 
apprender,  quamvis  daumla  specialis  warranties  vel  acquie- 
tancice  in  cards  tenentium  inseratur,  quia  in  tali  casu  transit  terra 
cum  onere :  and  he  that  is  in  seisin  or  possession  need  not  to 
make  any  entrie  or  claime :  and  albeit  the  sonne  after  the  feoff- 
ment with  warrantie,  and  before  the  death  of  the  father,  had 
beene  disseised,  and  so  being  out  of  possession,  the  warrantie 
descended  upon  him,  yet  the  warrantie  should  not  binde  him, 
because  at  the  time  of  the  warrantie  made  the  sonne  was  in  pos- 
session. [*]  So  if  my  eollaterall  ancestor  release  to  my  tenant 
for  life,  this  shall  not  binde  my  reversion  or  remainder,  because 
that  the  reversion  or  remainder  continued  in  me.  But  if  he  that 
hath  a  rent,  common,  or  any  profit  out  of  the  land  in  taile,  dis- 
seise the  tenant  of  the  land,  and  maketh  a  feoffment  of  the  land, 
and  warrant  the  land  to  the  feoffee  and  his  heires,  [a]  regularly 
the  warrantie  doth  extend  to  all  things  issuing  out  of  the  land, 
that  is  to  say,  to  warrant  the  land  in  such  plight  and  manner, 
as  it  was  in  the  hand  of  the  feoffor,  at  the  time  of  the  feoffment 
with  warrantie ;  and  the  feoffee  shall  vouch,  as  of  lands  dis- 
charged of  the  rent,  &c.  at  the  time  of  the  feoffment  made. 

A  woman  that  hath  a  rent  charge  in  fee  entermarrieth  with 
the  tenant  of  the  land,  an  estranger  releaseth  to  the  tenant  of 
the  land  with  warrantie ;  he  shall  not  take  advantage  of  this 
warrantie  either  by  voucher  or  xcarrantice  car  tee  ;  for  the  wife, 
if  her  husband  die,  or  the  heire  of  the  wife  living  the  husband, 
cannot  have  an  action  for  the  rent  upon  a  title  before 
B^"  the  warrantie  made  ;  for  if  the  heire  of  the  wife 
bring  an  assise  of  riiorclancester,  this  action  is  grounded 
after  the  warrantie,  whereunto,  as  hath  beene  said, 
the  warrantie  shall  not  extend. 

So  it  is  if  the  grantee  of  the  rent  grant  it  to  the  tenant  of  the 
land  upon  condition,  which  maketh  a  feoffment  of  the  land  with 
warrantie,  this  warrantie  cannot  extend  to  the  rent,  albeit  the 
feoffement  was  made  of  the  land  discharged  of  the  rent ;  for  if 
the  condition  be  broken,  and  the  grantor  be  intituled  to  an  ac- 
tion, this  must  of  necessite  be  grounded  after  the  warrantie  made. 

But  in  the  case  aforesaid,  when  the  woman  grantee  of  the  rent 
marrieth  with  the  tenant,  and  the  tenant  maketh  a  feoffment  in 
fee  with  warrantie,  and  dieth,  in  a  cui  in  vita  brought  by  the  wife 
(as  by  law  she  may),  [U]  the  feoffee  shall  vouche  as  of  lands  dis- 
charged at  the  time  of  the  warranty  made,  for  that  her  title  is 
paramont :  so  if  tenant  in  taile  of  a  rent  charge  purchase  the 
land,  and  make  a  feoffement  with  warrantie,  if  the  issue  bring  a 
formedon  of  the  rent,  the  tenant  shall  vouche  causa  qua  supra. 

[*]  But  some  doe  hold,  that  a  man  shall  not  vouche,  &c.  as 
18  E.  3.  55!  of  l^°<i  discharged  of  a  rent  service. 

[c]  Also,  no  warrantie  doth  extend  unto  meere  and  naked 
titles,  as  by  force  of  a  condition  with  clause  of  re-entry,  exchange, 
mortmaine,  consent  to  the  ravisher  and  the  like,  because  that  for 
these  no  action  doth  lye  ;  and  if  no  action  can  be  brought,  there 
can  be  neither  voucher,  writ  of  warrantiw  cartas,  nor  rebutter, 
and  they  continue  in  such  plight  and  essence  as  they  were  by 
their  originall  creation,  and  by  no  act  can  be  displaced  or  devested 
out  of  their  originall  essence,  and  therefore  cannot  be  bound  by 
any  warrantie. 


["f-] 


(Ant.  366.  b.) 


(Ant.  202.) 


[6]  7  H.  4.  17. 


44  E.  .3. 19. 

[c]  Lib.  10.  fol. 

97.  E.  Sey- 

more's  case. 

22  Ass.  pi.  38. 

31  Ass.  p.  13. 

41  Ass.  p.  6. 

83  E.  3.  Gar.  74. 

(2  Cro.  593.) 

Dyer,  224.  a. 

3  Inst.  216. 

10  Rep.  98.  b. 

Ant  205.  a,    Plowd.  363.  b.) 


And 


L,  3.  C.  13.  Sect.  742.      Of  Warrantie.  [389.  a. 

[d]  And  albeit  a  woman  may  have  a  writ  of  dower  to  recover  [d]  34  E.  3. 
her  dower,  yet  because  her  title  of  dower  cannot  be  devested  out  tit.  Droit,  72. 
of  the  originall  essence,  a  collaterall  warrantie  of  the  ancestor  .^  Rep.  Ver- 
of  the  woman  shall  not  barre  her.     So  it  is  of  a  feoffment  causd  non's  case.) 
matrimonii  praelocuti. 

[e]  A  warrantie  doth  not  extend  to  any  lease,  though  it  be  for  W  21  E.  4. 
many  thousand  yeares,  or  to  estates  of  tenant  by  statute  staple,  ^  g  ^  12  22 
or  merchant,  or  elegit,  or  any  other  chattel,  but  only  to  freehold  n  h.  7. 15, 16. 
or  inheritances,  as  it  appeareth  in  all  Littleton's  cases  which  he  20  H.  7.  2.  b. 
putteth  in  this  Chapter.     And  this  is  the  reason,  that  in  all  ]^  ^-  g-  g^* 
actions  which  lessee  for  yeares  may  have,  a  warrantie  cannot  be  p^r  Finch,  in 
pleaded  in  barre,  as  in  an  action  of  trespasse,  or  upon  the  statute  Quar.  Imp. 
of  5  R.  2.  and  the  like.     But  in  those  actions  when  the  free-  I^.^Jq' P',  q^ 
hold  of  inheritances  doe  come  in  question,  there  the  warrantie  (^^t^  101, 356.' 
may  be  pleaded  :  but  in  such  actions  which  none  but  a  tenant  of  Hob.  14.  28. 
the  freehold  can  have,  as  upon  the  statute  of  8  H.  6.  assise,  or  2  Saund.  180.) 
the  like,  there  a  warrantie  may  be  pleaded  in  barre  (1). 

"  When  a  warrantie  is  made  to  a  man  upon  an  estate  which 
hee  then  had,  if  the  estate  be  defeated,  the  warrantie  is  defeated." 
Here  it  appeareth,  that  although  a  collaterall  warrantie  be  de- 
scended, [/]  yet  if  the  state  whereunto  the  warrantie  was  an-  [/]  3  H.  7. 9.  b. 
nexed  be  defeated,  albeit  it  be  by  a  meere  stranger  (as  in  this  16  E.  3.  tit. 
ca^e  that  Littleton  here  puts  by  the  discontinuee)  the  warrantie  ci*aim°"'io. 
is  defeated;  and  although  the  discontinuance  remaine,  and  no  9H.  4.'8. 
remitter  wrought  to  the  heire,  yet  the  warrantie  is  defeated,  and  Pi-  Com.  158. 
barre  removed,  so  as  the  issue  in  taile  may  have  his  formedon,  ^         1''     '^ 
and   recover   the   land.      Suhlato  principali  tollitur  adjunc- 
tum  (2). 

Sect.  742. 

TN  the  same  manner  it  is,  if  the  discontinuee  maJce  a  feoffment  infee^ 

reserving  to  him  a  certain  rent,  and  for  default  of  payment  a  re-entrie^ 

^c.  and  a  collaterall  *  warrantie  of  the  ancestour  is  made  to  the  feoffee 

that  hath  the  estateupon  condition,  ^c.  and  (A)  dieth  ivithout  issue,  albeit 

that  this  warranty  shall  descend  upon  the  issue  in  tayle,  yet  if  after  the 

rent 

*  warrantie  of  the  ancestour  is  made — ancestour  releaseth,  L.  and  M.  and  Roh. 

(A)  Here,  it  seems,  the  words  "the  ancestor"  should  be  understood.  For,  as  Mr.  Ritso 
observes,  it  is  not  the  discontinuee  who  is  here  spoken  of,  nor  the  feoffee  tcho  hath  the  estate 
upon  condition,  but  the  collaterall  ancestor  of  the  tenant  in  tail,  who  made  the  warranty. 
See  Mr.  Ritso'a  Intr.  p.  114,  and  the  reading  above  under*. 


(1)  The  feoffee  with  warranty  cannot  take  any  advantage  of  the  warranty 
unless  he  be  tenant  of  the  land.     26  H.  8.  3.  b. — [Note  342.] 

(2)  If  a  man  makes  a  feoffment  with  warranty,  non-feoffment  is  a  good 
plea;  for  if  the  feoffment  be  avoided,  the  warranty  also  is  avoided,  for  that 
depends  upon  the  feoffment.     But  if  the  man  makes  a  lease  for  yeai's,  and 

.  covenants  that  he  will  warrant  and  defend  the  land  to  the  lessee ;  if  the  lessee 
be  ousted,  whether  it  be  by  one  that  hath  or  that  hath  not  title,  he  shall  have 
a  writ  of  covenant.     Brownlow's  Rep.  part  2.  fol.  1G5. — [Note  343.] 


389.  b.  390.  a.]     Of  Warrantie.    L.  3,  C.  13.  Sect.  743. 

rent  he  behind^  and  the  1|@°*  diseontinuee  enter  into  the  land*,  r389.1 
then  shall  the  issue  in  tayle  have  his  recovery  by  writ  of  forme-  L  ^-  J 
don,  because  the  collaterall  warranty  is  defeated.  And  so  if 
any  such  collaterall  warrantie  be  pleaded  against  the  issue  in  taile,  in 
his  action  of  formedon,  he  may  shew  the  matter  as  is  aforesaid,  how  the 
warrantie  is  defeated,  ^c.  and  so  hee  may  well  maintaine  his  action,  \.  ^c. 

(10  Rep.  95.)  TJ  ERE  Littleton  putteth  another  case  upon  the  same  ground 
-L-L  and  reason,  viz.  where  the  state  whereunto  the  warrantie  is 
annexed  is  defeated,  there  the  warrantie  it  selfe  is  defeated  also, 
which  is  one  of  the  maximes  of  the  common  law. 

Sect.  743. 


ALSO,  if  tenant  in  taile  make  a  feoffment  to  his  uncle,  and  after  the 
uncle  make  a  feoffement  in  fee  with  warranty,  S^c.  to  another,  and 
after  the  f  coffee  of  the  uncle  doth  re-enfeoffe  againe  the  uncle  in  fee,  and 
after  the  uncle  enfeoff eth  a  stranger  in  fee  without  warrantie,  and  dieth 
without  issue,  and  the  tenant  in  tayle  dieth,  if  the  issue  in  tayle  will  bring 
his  writ  0/ formedon  against  the  stranger  that  was  the  last  feoffee,  \\  and 
that  by  the  uncle,  the  issue  shall  not  be  barred  by  the  warranty  that  was 
made  by  the  uncle  to  the  first  feoffee  of  his  uncle,  for  that  the  said  war- 
rantie was  defeated  and  taken  away,  because  the  uncle  tooke  backe  to 
him  as  great  an  estate  from  his  first  feoffee  to  whom  the  warrantie  was 
made,  as  the  same  feoffee  had  from  him  (pur  ceo  que  I'uncle  a  luy  % 
reprist  cj  grand  estate  de  son  §  primer  feoffee  a  que  le  garrantie  fuit 
fait,  sicome  mesme  le  feoffee  avoit  de  luy.)  And  the  cause  why  the  war- 
ranty is  defeated  is  this,  viz.  that  if  the  warrantie  should  stand  in  his 
force,  then  the  uncle  should  warrant  to  himselfe,  which  cannot  be. 

(Vaugh.  389.)      B@*TTERE  Littleton  putteth  another  case  where  ar390."J 

-tl  warrantie  may  be  defeated,  as  when  the  uncle  L     ^-     J 

taketh  backe  as  large  an  estate  as  he  had  made,  the 

warrantie  is  defeated,  because  he  cannot  warrant  land  to  him- 

y]  Temps  E.  1.  selfe.     [(/]  And  so  it  is  if  the  uncle  had  made  the  warrantie  to 

ro°E'^r'l4^^'      ^^^  feoffee,  his  heires  and  assignes,  and  taken  backe  an  estate  in 

44  e!  3.  38.  fee,  and  after  infeoffed  another,  yet  the  warrantie  is  defeated,  for 

25  E.  3. 43.  b.       that  he  cannot  be  assignee  to  himselfe,  and  a  man  shall  not  re- 

?4  F  \  ^^'  gularly  vouche  himselfe  as  assignee  of  a  fee  simple,  and  the  law 

Voucher,  106.      '^dl  not  suffer  things  inutile  and  unprofitable.   [A]  And  yet  if  the 

16  E.  3.  father  be  infeoffed  with  warrantie  to  him  and  his  heires,  the  father, 

y^'if^l'"'  ^''-        infeoffeth  his  heire  apparent  in  fee  (A)  and  dieth,  he,  (as  it  hath 

Vouchee,  122.     17  E.  3.  73,  74.     20  H.  6.  29.     (2  Roll.  Abr.  739.)     [A]  40  E.  3,  14.  a. 
41  E.  2.  25.  a.     (Ant.  384.     Roll.  Abr.  98.  a.) 

beene 

*  &c.  added  in  L.  and  M.  and  Rob.         %  reprist — ^prist  L.  and  M.  and 

^  &c.  not  in  L.  and  M.  or  Rob.  Hoh. 

II  &c.  added  in  L.  and  M.  and  Rob.  §  dit  added  in  L.  and  M.  and  Rah. 

(A)  It  aeema  that  the  feoffement  of  the  father  to  hie  heir  apparent  must  be  understood  to 
he  made  with  warranty.  For  otherwise  the  father's  death,  which  appears  to  be  the  act  in 
law  meant  by  lord  Coke,  would  not  determine  any  warranty  between  the  father  and  son. 


L.  3.  C.  13.  Sect.  744.       Of  Warrantie.  [390.  a. 

beene  said)  shall  vouch  himselfe,  and  the  heire  in  borow  English, 
by  reason  the  act  in  law  determined  the  warrantie  betweene  the 
father  and  the  sonne  (B). 

[^^  But  if  a  man  maketh  a  feoflFment  in  fee  with  warrantie  to  [O  H  H.  4.  20. 


17  E.  3. 


the  feoffee,  his  heires  and  assignes,  and  the  feoffee  re-enfeoffeth  ^2-  ^^  ■ 
the  feoffor  and  his  wife,  or  the  feoffor  and  any  other  stranger,  the  is'e.  3.  56. 
warrantie  remaineth  still ;  or  if  two  doe  make  a  feoftement  with  29  E.  3.  46. 
warrantie  to  one  and  his  heires  and  assignes,  and  the  feoffee  re-  ^y^"!'  3'89_ 
enfeoffs  one  of  the  feoffors,  the  warrantie  doth  also  remaine. 


Sect.  744. 

'RUT  if  the  feoffee  had  made  an  estate  to  (C)  his  uncle  for  terme  of 
lifej  or  in  taile,  saving  the  reversion,  ^c.  or  a  gift  in  tayle  to  the 
uncle,  or  a  lease  for  terme  of  life,  the  remaind&  over,  ^c.  in  this  case  the 
warrantie  is  not  altogether  taken  away  (en  cest  cas  le  garrantie  n'est 
*pas  tout  ousterment  anient),  but  is  put  in  susjjenee  during  the  estate  that 
the  uncle  hath.  For  after  that,  that  the  uncle  is  dead  without  issue,  t  ^"c 
then  he  in  the  reversion,  or  he  in  the  remainder,  shall  barre  the  issue  in 
taile  in  his  writ  of  formedon  bg  the  collaterall  warranty  in  such  case,  ^c. 
Bfit  otherwise  it  is  where  the  uncle  hath  as  great  estate  in  the  land  of  the 
feoffee  to  whom  the  warrantie  was  made,  as  the  feoffee  hath  himselfe. 
Causa  patet. 

"  fpOR  terme  of  life,  or  in  taile."     Here  it  appeareth,  [^]  that  [k]  16  E.  3. 

by  taking  a  [l]  lease  for  life,  or  gift  in  taile,  the  warrantie  '^•'"°^-  ^^• 

is  suspended.  44  E.  3. 38. 

A  man  infeoffeth  a  woman  with  warrantie,  they  intermarry  26  E.  3.  56. 

and  are  impleaded,  upon  the  default  of  the  husband,  the  wife  is  ^^  ^'_  3'  gQ* 

received,  she  shal  vouch  her  husband,  &c.  notwithstanding  the  12  E.  3. 

warranty  was  put  in  suspense,    [m]  And  so  on  the  other  side,  if  ^"^''^'"P^^^, 

a  woman   infeoffe  a  man  with  warrantie,  and   they  intermarry  14  g.^'s.'^ib.  12. 

and  are  impleaded,  the  husband  shall  vouch  himselfe  and   his  (4  Rep.  52.) 

wife  by  force  of  the  said  warrantie.  ^q  6  E.  2. 

Vouch.  257.      3  E.  3.  ib.  201.       5  E.  3.  ib.  178.      18  E.  3.  52.     14  E.  3.     Vouch.  109. 

31   E.  3.  ib.  25.      43  E.  3.  7.      44  E.  3.  38.      32  E.  3.      Voucher,  102.      [m]  4  E.  2. 

Voucher,  243.  246. 

[n]  An  infant  en  ventre  sa  mere  may  be  vouched  if  God  give  (Ant.  348.  a.) 
him  a  birth,  and  if  not,  such  a  one  heire  to  the  warrantie;  but        xemps.  E.  1. 

he  cannot  be  vouched  alone  without  the  heire  at  the  common  (j^rd.  153. 

law.  for  proces  shall  be  presently  awarded  against  him.  31  E.  1. 

'  '^  >■  "  "  Brieie,  873. 

8  K   2 

"  But  is  put  in  suspence."    [o]  Tenant  in  tayle  maketh  a  feoffe-  Vou'ch.  237. 

11  E.  3.  ibid.  13.  11  E.  3.  Quar.  imp.  158.  38  E.  3.  7  <fc  29.  41  E.  3.  in  Dower. 
9  H.  6.  24.  PI.  Com.  Stowel's  case,  per  Saunders  &  Browne,  [o]  21  E.  3.  36.  a.  &  b. 
38  E.  3.  21.  44  E.  3.  26.  45  E.  3.  Title,  32.  44  E.  3.  ib.  31.  33  E.  3.  ib.  4.  (3  Leon. 
10.     Cro.  Car.  146.) 

ment 
*  pas  not  in  L.  and  M.  or  Roh.  f  ^<^-  ^^^^^  ^^  ^'  ^"^^  ^-  ^"^^  ■^°^* 


(B)  Vid.  ante  110.  h.    140.  h.    376.  b.    384.  h.   385.  h. 

(C)  Here  "  his"  eeems  printed  by  mistake  instead  of  "  the."     ^ee  Mr.  Ritao  a  Mr. 
f.  114. 


390.  a.  390.  b.]      Of  Wanantie.    L.  3.  C.  13.  Sect.  745. 

ment  in  fee  with  warrantie,  and  disseiseth  the  discontinuee,  and 
dyeth  seised,  leaving  assets  to  his  issue.  Some  hold  that  in 
respect  of  this  suspended  warrantie  and  assets,  the 
OCrissue  in  taile  shall  not  be  remitted,  but  that  the  rSOO."] 
discontinuee  shall  recover  against  the  issue  in  taile  |_  b.  J 
and  he  take  advantage  of  his  warrantie,  if  any  hee 
hath,  and  after  in  a  formedon  brought  by  the  issue,  the  discon- 
tinuee shall  barre  him  in  respect  of  the  warrantie  and  assets ; 
and  so  every  man's  right  saved  (1). 


Sect.  745. 


8E.  2. 

Voucher,  237. 
(Plowd.  379.  a.) 


(5  Rep.  109. 
Ant.  13.  a.  b.) 


ALSOy  if  tJie  uncle  after  such  feoffment  made  with  warrantie,  or  a 

release  made  hy  him  ivith  warranty,  he  attaint  of  felony,  or  outlawed 

of  felony,  such  collaterall  warrantie,  shall  not  bar  nor  grieve  the  issue  in 

the  taile,  for  this,  that  by  the  attainder  of  felony,  the  bloud  is  corrupted 

betweene  them,  ^e. 

Sect.  733.  706.     "  r\Ji  a  release  made  hy  him  xcitli  warrantie."   Note  a  warrantie 
grounded  upon  a  release.     Hereof  you  shall  reade  before 
in  this  chapter. 

"5e  attaint  of  felony,  or  outlawed,  &c."  Note,  according  to 
Littleton  here,  there  be  two  manner  of  attainders  :  the  one  is 
after  appearance,  and  that  in  three  manners ;  by  confession,  by 
battell,  or  by  verdict :  the  other  upon  process  to  bee  outlawed, 
which  is  an  attainder  in  law.  But  (as  hath  beene  said)  there  is 
a  great  diversitie,  as  to  the  forfeiture  of  land,  betweene  an 
attainder  of  felony  by  outlawry  upon  an  appeale,  and  upon  an 
inditement ;  for  in  the  case  of  an  appeale  the  defendant  shall 
forfeit  no  lands,  but  such  as  he  had  at  the  time  of  the  outlawrie 
pronounced ;  but  in  case  of  indictment,  such  as  hee  had  at  the 
time  of  the  felony  committed.  And  the  reason  of  this  diversitie  is 
evident ;  for  that  in  the  case  of  appeale  there  is  no  time  alleaged 
in  the  writ  when  the  felony  was  done,  and  therefore  of  necessitie  it 
must  relate  to  that  case  only  to  the  judgment  of  the  outlawry  :  but 
in  the  case  of  indictment  there  is  a  certain  time  alleaged, 
and  therefore  in  that  case  it  shall  relate  to  the  time  alleaged 
in  the  indictment  when  the  felony  was  committed.  But  in  the 
case  of  the  indictment  there  is  also  a  diversitie  to  be  observed  : 
[o]  for,  as  hath  beene  said,  it  shall  relate  to  the  time  alleaged 
in  the  indictment  for  avoyding  of  estates,  charges,  and  incum- 
brances, made  by  the  felon  after  the  felony  committed ;  but  for 
the  meane  profits  of  the  land  it  shall  relate  only  to  the  judge- 
ment, as  well  in  this  case  of  outlawrie  as  in  other  cases.  And 
where  Littleton  saith  (attaint  of  felony)  if  a  man  be  convicted 
of  felony  by  verdict,  and  delivered  to  the  ordinary  to  make 
|>]  8  E.  2.  purgation,  [p]  hee  cannot  be  vouched,  for  that  the  time  of  his 

Z°^^^l\^^o'     purgation  (if  any  should  be)  is  uncertaine,  and  the  demandant 
29.  b.  Simile.  cannot 


[o]  33  E.  3." 
Forfeiture,  30. 
38  E.  3.  31.^ 
3  E.  4.  25. 
19  E.  4.  2. 
PI.  Com.  488.  b. 


(1)  But  clearly,  if  the  warranty  were  never  executed,  as  in  the  case  of  fine 
surrender  xdth  warranty  and  assets,  there  shall  be  a  remitter.  Lord  Hale's 
MSS.— [Note  344.] 


L.  3.  C.  13.  Sect.  745.     Of  Warrantie.      [390.  b.  391.  a. 

cannot  be  delayed  upon  such  an  uncertaintie ',  but  the  tenant  is 
not  without  remedie,  for  hee  may  have  his  warrantia  cartse. 

"  Attaint."     Of  this  word  hath  beene  spoken  in  the  second 
Booke  in  the  Chapter  of  Villenage. 

Upon  severall  attainders  of  felonies  there  lye  three  severall  [«]  Dame  Hale's 
writs  of  escheate,  viz.  [*]  first,  when  he  hath  judgement  to  be  ^^«Y"  P^-  Com. 
hanged  :  secondly,  when  he  is  outlawed :  thirdly,  when  he  ab-    °  •   ^^• 
jureth  the  realme. 

[jj  The  defendant  in  an  appeale  of  death  did  wage  battell,  and  [q\  8  E.  3. 
was  slaine  in  the  field,  yet  judgement  was  given  that  he  should  Judgement,  225. 
be  hanged;  and  the  justices  said,  that  it  is  altogether  necessarie 
that  such  a  judgement  be  given,  for  otherwise  the  lord  would  not 
have  a  writ  of  escheate.     \r]  And  in  eire  it  hath  beene  scene,  [,.]  15  e.  .3. 
that  a  man  hath  beene  attainted  after  his  death  by  presentment,  Petition,  2. 
&c.  (2).     The  difi"erence  betweene  a  man  attainted  and  convicted 
is,  that  a  man  is  said  convict  before  hee  hath  judgement;  as  if 
a  man  bee  convict  by  confession,  verdict,  or  recreancie.     And 
when  he  hath  his  judgement  upon  the  verdict,  confes- 

t  391.1  sion,  or  JS©"  recreancie ;    or  upon  the  outlawrie,  or 
a.     J  abjuration,  then  j|S  he  said  to  be  attaint.  And  thus  is 

the  law  taken  at  this  day,  notwithstanding  [s]  some  [«[  40  e.  3. 12. 
diversitie  of  opinions  in  our  bookes.  3  E.  3. 

If  a  felon  be  convicted  by  verdict,  confession,  or  recreancie,  8°k  2!iWd!'293. 
he  doth  forfeit  his  goods  and  chattels,  &c.  presently,     [t]  For  21  h.  "7. 
where   a  reason  hath  beene  yeelded  in   our  bookes,  that  the  \t\  Dame  Hale's 
praying  of  his  clergie  was  a  refusall  of  the  judgement  of  the  law,  case,  ubi  sup. 
and  a  flight  in  law,  and  for  that  cause  he  forfeited  his  goods  and  n^'jf' ^"121 
chattels,  that  doth  not  hold ;  for  if  a  man  be  convict  of  pettie  9  Rep.  129.) ' 
treason,  or  murder,  or  any  other  crime,  for  which  he  cannot  have 
his  clergie,  yet  by  his  very  conviction  he  forfeiteth  his  goods  and 
chattels  before  attainder.    And  [«]  Stanford  (speaking  of  a  felon  [„]  Staunf.  PI. 
convict  by  verdict)  saith,  that  he  shall  forfeit  his  goods  which  he  Cor.  fol.  192. 
had  at  the  time  of  the  verdict  given,  which  is  the  conviction  in  roxifye-'s'cise.' 
that  case;  and  by  the  statute  of  1  R.  3.  caj).  3.  no  sherifie,  bai-  vide  7  H.  4. 11. 
liffe,  &c.  shall  seise  the  goods  of  a  felon  before  hee  bee  convicted   1  R-  3.  cap.  3. 
of  the  felony;  whereby  it  appeareth,  that  the  goods  may  be  (3  Inst.  228.) 
seised  as  a  forfeit  after  conviction.     And  the  [x]  old  statute  is  [^[^^,'i*/fek)num 
worthy  of  noting  :  Provisum  est  in  curia  nostra  coram  justiciariis  ^gj  Magna 
nostris,  quod  de  cetero  nullus  homo  captus  pro  morte  hominis  vel  Carta,  fol.  66. 
alia  felonid  pro  qua  debet  imprisonari,  disseisietur  de  terris  et  2-  part. 
tenementis  velcatallis  suis  quousquc  convictus/uerit.     So  as  by  a 
conviction  of  a  felon,  his  goods  and  chattels  are  forfeited  ;  but 
by  attainder,  that  is  by  judgement  given,  his  lands  and  tenements 
are  forfeited,  and  his  bloud  corrupted,  and  not  before. 

'  If 


(2)  In  Lambarde's  Justice  of  Peace,  ch.  10.  it  is  said,  that  if  a  man  be 
attainted  of  murder  or  felony,  it  is  needless  to  arraign  him  of  new  of  any 
other  felony,  because  it  is  needless  to  condemn  him  who  is  already  attainted, 
except  in  special  cases,  either  for  the  advantage  of  the  king,  or  the  commodity 
of  the  subject.  The  author  then  proceeds  to  state  several  examples  of  both  the 
exceptions.  In  4  Rep.  vol.  57.  sir  Edward  Coke  observes,  that  though  a  man  be 
killed  in  rebellion,  he  shall  not  forfeit  his  lands  nor  goods ;  but  if  the  chief  jus- 
tice (sovereign  coroner  of  England,  upon  the  view  of  the  body,  make  record 
thereof,  and  return  it  to  the  king's  bench,  he  shall  forfeit  lands  and  goods,  as 
Fineux,  chief-justice,  did,  temp.  H.  7. — [Note  845.] 


391.  a.] 

[y]  Staunf.  PI. 
Cor.  139.  115, 


(3  Rep.  10.  b.) 


[*]  Glanvil.  lib. 
14  Ca.  15. 
Marlb.  ca.  25. 
W.  1.  c.  15. 
[a]  3  E.  4.  14. 
18  E.  4.  10. 
23  Ass.  49. 
1  E.  3.  13. 
Staunf.  PI.  Cor. 
102.  E. 
8  H.  4.  2. 
[6]  22  Ass.  49. 
(3  Inst.  47. 
4  Rep.  40,  41, 
42.  44.) 


[c]  Staunf.  Praer. 
45.  b.     16  E.  3. 
Coron.  116.  & 
3E.3.     Coron. 
302. 

(5  Rep.  120. 
9  Rep.  66.) 
(Vide  Ant.  74. 
3  Inst.  112. 
1  H.  P.  C.  354, 
355.  Vol.  2.  12. 
368.     Salk.  85. 
contra.) 


[d]  28  H.  8. 

cap.  15, 

(3  Inst,  112.) 


[e]  Hil.  2  Jac. 
Regis, 

Vide  Mich.  7  & 

8  Eliz.  Dier,  241, 

14  Eliz.  Dier. 

308. 

(4  Rep.  43.) 


Of  Wairantie.        L.  3.  C.  13.  Sect.  745. 

[y]  If  the  party  upon  his  arraignment  refuse  to  answer  accord- 
ing to  law,  or  say  nothing,  he  shall  not  be  adjudged  to  be  hanged, 
but  for  his  contempt,  to  peine  forte  et  dure,  which  worketh  no 
attainder  for  the  felony,  nor  forfeiture  of  his  lands,  or  corruption 
of  bloud.  But  in  case  of  high  treason,  if  the  party  refuse  to 
answer  according  to  law,  or  say  nothing,  hee  shall  have  such 
judgement  by  attainder,  as  if  he  had  beene  convicted  by  verdict 
or  confession  (1). 

"  Felony."  [*]  Ex  vi  termini  significat  quodlihet  capitate  cri- 
men felleo  animo perpetratum,  in  which  sense  murder  is  said  to 
be  done  per  feloniam,  and  is  so  appropriated  by  law,  as/elonich 
cannot  be  expressed  by  any  other  word,  [a]  And  in  antient 
times  this  word  {/eIonire)vfas  of  so  large  an  extent  as  it  included 
high-treason ;  and  therefore  in  our  antient  bookes,  by  the  pardon 
of  all  felonies,  high-treason,  or  counterfeiting  of  the  great  scale, 
and  of  the  king's  coine,  &c.  was  pardoned.  [6]  But  afterwards  it 
was  resolved,  that  in  the  king's  pardon  or  charter,  this  word 
(^felonie)  should  only  extend  to  common  felonies,  and  that  high- 
treason  should  not  be  comprehended  under  the  same,  and  there- 
fore ought  to  be  specially  named.  And  yet  that  a  pardon  of  all 
felonies  should  extend  to  petite  treason  :  wherefore  by  the  law  at 
this  day  under  the  word  (felony)  in  commissions,  &c.  is  included 
petite  treason,  murder,  homicide,  burning  of  houses,  burglarie, 
robbery,  rape,  &c.  chance-medly,  se  defendendo,  and  petite 
larceny.  [c~\  For  S'uch  of  these  crimes  for  which  any  shall  have 
this  judgement,  to  be  hanged  by  the  necke  till  he  be  dead,  he 
shall  forfeit  all  his  lands  in  fee  simple,  and  his  goods  and  chattels  : 
for  felony  by  chance-medly,  or  se  defendendo,  or  petite  larceny, 
he  shall  forfeit  his  goods  and  chattels,  and  no  lands  of  any  estate 
of  freehold  or  inheritance.  And  all  felonies  punishable  accord- 
ing to  the  course  of  the  common  law,  are  either  by  the  common 
law,  or  by  statute.  There  is  also  a  felony  punishable  by  the  civill 
law,  because  it  is  done  upon  the  high  sea,  as  pyracie,  robberie, 
or  murder,  whereof  the  common  law  did  take  no  notice,  because 
it  could  not  be  tried  by  twelve  men.  If  this  pyracie  be  tried 
before  the  lord  admirall  in  the  court  of  the  admiraltie,  according 
to  the  civill  law,  and  the  delinquent  there  attainted,  yet  shall  it 
worke  no  corruption  of  bloud,  nor  forfeiture  of  his  lands;  other- 
wise it  is  if  he  be  attainted  before  the  commissioners  by  force  of 
the  statute  [d]  28  ^.8.  By  the  expresse  purview  of  that  statute, 
about  the  end  of  the  reigne  of  queene  Elizabeth,  certaine  English 
pyrats,  that  had  robbed  on  the  sea  merchants  of  Venice,  in  amitie 
with  the  queen,  being  not  knowen,  obtained  a  coronation  pardon, 
whereby  amongst  other  things,  the  king  pardoned  them  all 
felonies.  It  was  [e]  resolved  by  all  the  judges  of  England  upon 
conference  and  advisement,  that  this  did  not  pardon  the  pyracie; 
for  seeing  it  was  no  felonie  whereof  the  common  law  tooke  conu- 
sance, and  the  statute  of  28  H.  8,  did  not  alter  the  offence,  but 
ordaine  a  triall  and  inflict  punishment,  therefore  it  ought  to  be 
pardoned  specially,  or  by  words  which  tant  amount,  and  not  by 
the  generall  name  of  felony ;  and  according  to  this  resolution  the 
delinquents  were  attainted  and"  executed. 

Pyrata 


(1)  On  the  peine  forte  et  dure,  see  Mr.  Justice  Blackstone's  Commentaries, 
vol.  4.  c.  25. 


L.  3.  C.  13.  Sect.  745.     Of  Warrantie.  [391.  a. 

Pt/rata  commetli  of  the  word  'Truprdiic,  ■which  signifieth  a  rover 
at  sea.  Attainder  of  heresie  ov  j)ratminire  worketh  no  corrup- 
tion of  blood,  nor  heresie,  forfeiture  of  lands ;  but  in  case  of 
prcemunire,  forfeiture  of  lands  in  fee  simple,  but  not  of  lands  in 
taile,  as  formerly  hath  been  said  (2).  r/l  By  some  statutes  it  [/]  Statute  de 

'  •'  \    ->     \.J  S      J  Magna  moneta, 

tempore  E.  1.     35  E.  1.  de  Carlisle,     20  E.  3.  cap.  4.     (Doct.  &  Stud.  115.) 

is 

(2)  The  offence  of  FRJ^MUNIRE,'\^  called  from  the  words  of  the  writ  pre- 
paratory to  its  prosecution.  It  is  described  by  Mr.  justice  Blackstone,  book  4. 
c.  8.  to  be,  introducing  a  foreign  power  into  the  land,  and  creating  impermm 
*'  in  imperio,  by  paying  that  obedience  to  the  papal  process,  which  constitunally 
"  belonged  to  the  king  alone."  To  explain  fully  this  offence,  and  the  laws  of 
recusancy  mentioned  in  this  place,  by  lord  Coke,  it  is  necessary,  I.  to  state  the 
laws,  which  were  passed  before  the  Reformation,  to  restrain  what,  in  the  law 
of  England  was  termed,  papal  provision,  or  the  pope's  presenting  to  English 
benefices, — and  papal  process,  or  the  pope's  interfering  in  the  process  of  the 
ecclesiastical  courts  of  England.  This  will  lead,  II.  to  a  statement  of  the  laws, 
which,  since  the  division  of  the  churches  at  the  Reformation,  have  been  passed 
against  those,  who,  from  their  remaining  in  communion  with  the  see  of  Rome, 
have  received,  in  the  laws  of  England,  the  appellation  of  papists,  and  persons 
professing  the  popish  religion.  III.  After  this,  will  be  shown  the  effect  and 
operation  of  the  laws  which  were  passed  in  the  reign  of  his  majesty  king 
G-e'orge  3,  to  relieve  persons  of  that  description.  IV.  Some  general  ob- 
servations will  then  be  offered,  to  point  out  the  particular  laws,  to  which  his 
majesty's  English  subjects  in  communion  with  the  see  of  Rome  were  then  still 
exposed,  but  which  did  not,  in  any  respect,  affect  English  protestant  dissenters ; 
and  some  remarks  on  the  operation  of  the  toleration  act,  and  the  act  for  quieting 
corporations,  so  far  as  they  affect  Roman  catholics, — on  the  right  or  obligation 
of  Roman  catholics  to  serve  in  the  militia,  and  to  serve  on  juries,  and  on  their 
right  to  be  admitted  to  factories,  and  to  hold  offices  exerciseable  abroad.  So 
far  this  note  stands  as  it  was  inserted  in  the  former  edition.  V.  We  shall  then 
mention  the  act  of  9  G-eo.  IV.  c.  17.  in  favour  of  protestant  dissenters;  and, 
VI.  the  act  of  the  10  Geo.  4.  c.  7.  in  favour  of  Roman  catholics. 

I.  WITH  RESPECT  TO  PAPAL  PR  0  VISIONS  AND  PAPAL  PR  0- 
CESS. — The  35  Edw.  1.  stat.  de  asjjorfatis  reliyiosortim,  is  said  to  be  the  foun- 
dation of  all  the  subsequent  statutes  of  praemunire.  It  recites,  that,  the  abbots, 
priors,  and  governors,  had,  at  their  own  pleasure,  set  diverse  impositions  upon  the 
monasteries  and  houses  in  their  subjection ;  to  remedy  which,  it  was  enacted,  that, 
in  future  religious  persons  should  send  nothing  to  their  superiors  beyond  the 
sea;  and  that  no  impositions  whatsoever  should  be  taxed  by  priors  aliens.  By 
the  25  Edw.  O.Stat.  G.  27  Edw.  3.  Stat.  1.  c.  Laud  38  Edw.  3.  stat.  2.  c.  1,2,3,4. 
it  was  enacted,  that  the  court  of  Rome  should  present  or  collate  to  no  bishopric 
or  living  in  England ;  and  that,  if  any  one  disturbed  any  patron  in  the  pre- 
sentation to  a  living,  by  virtue  of  pajxil  provision,  such  provisor  should  pay 
fine  and  ransom  to  the  king,  at  his  will,  and  be  imprisoned  till  he  renounced 
such  provision.  The  same  punishment  was  inflicted  on  such  as  should  cite  the 
king  or  any  of  his  subjects  to  answer  in  the  court  of  Rome.  By  the  3  Richard  2. 
c.  3.  and  7  Richard  2.  c.  12.  it  was  enacted,  that  no  alien  should  be  capable 
of  letting  his  benefice  to  farm  :  and  that  no  alien  should  be  capable  of  being 
presented  to  any  ecclesiastical  preferment,  under  the  penalty  of  the  statute  of 
provisors.  By  the  stat.  12  Richai'd  2.  c.  15.  all  liegemen  of  the  king,  accept- 
ing of  a  living,  by  any  foreign  provision,  were  put  out  of  the  king's  protection, 
and  the  benefice  made  void.  To  which  the  13  Richard  2,  stat.  2,  c.  2.  adds 
banishment  and  forfeiture  of  lands  and  goods  ;  and  by  c.  3.  of  the  same  statute, 
it  was  enacted,  that  any  person  bringing  over  any  citation  or  exct  mmunication 
from  beyond  sea,  on  account  of  the  execution  of  the  foregoing  statutes  of 

provisors, 
Vol.  II.— 48 


391.  a.]  Of  Wanaiitie.       L.  3.  C.  13.  Sect.  745. 

is  said,  sur  forfeiture  de  rorpa  et  de  avoire,  or  sub  forisfactura 
omnium  quse  bipotestate  sua  ohtinet,  or  to  be  at  the  king's  will, 

body, 

provision  should  be  imprisoned,  forfeit  his  goods  and  lands,  and  moreover 
suffer  pain  of  life  and  member.  In  the  writ  for  the  execution  of  these  statutes, 
the  v/ords pras7niinire  facias,  being  used  to  command  a  citation  of  the  party, 
have  denominated  in  common  speech,  not  only  the  writ,  but  the  offence  itself 
of  maintaining  the  papal  power,  by  the  name  of  proBmuuirc.  The  16  Richard  2. 
c.  5.  which  is  the  statute  generally  referred  to  by  all  subsequent  statutes,  is 
usually  called  the  statute  of  praemunire.  It  enacts,  that  whoever  procures  at 
Rome,  or  elsewhere,  any  translations,  processes,  excommunications,  bulls, 
instruments,  or  other  things,  which  touch  the  king,  against  him,  his  crown, 
and  realm,  and  all  persons  aiding  and  assisting  therein,  shall  be  put  out  of  the 
king's  protection  ;  their  lands  and  goods  forfeited  to  the  king's  use  ;  and  they 
shall  be  attached  by  their  bodies,  to  answer  to  the  king  and  his  council,  or 
process  of  proermmire  facias  shall  be  made  out  against  them,  as  in  other  cases 
of  provisors.  By  the  2  Henry  4.  c,  3.  all  persons,  who  accept  any  provision 
from  the  pope,  to  be  exempt  from  any  canonical  obedience  to  their  proper  ordi- 
nary, were  also  subjected  to  the  penalties  of  praemunire.  This  is  said  to  be 
the  last  ancient  statute  concerning  this  offence,  till  the  separation  of  the 
church  of  England  from  the  church  of  Rome,  in  the  reign  of  Henry  8.  The 
penalties  of  praemunire  have  been  since  applied  to  other  offences,  some  of 
which  bear  more,  some  less,  and  some  no  relation  to  this  original  offence.  Its 
punishment  is  to  be  gathered  from  the  foregoing  statutes,  and  is  thus  shortly 
summed  up  by  sir  Edward  Coke.  "  That,  from  the  conviction,  the  defendant 
"  shall  be  out  of  the  king's  protection,  and  his  lands  and  tenements,  goods 
"  and  chattels,  forfeited  to  the  king;  and  that  his  body  shall  remain  in  prison 
''  at  the  king's  pleasure,  ant.  129.  b.  or,  as  other  authorities  have  it,  during  his 
.  "  life."  Such  is  the  offence  of  prasmunire,  and  such  its  punishment  by  the  law 
of  England.  Whenever  it  is  said,  that  a  person  by  any  act,  incurs  the  penaltes 
of  a  praemunire,  it  is  meant  to  express,  that  he  thereby  incurs  the  penalties, 
which,  by  the  different  statutes  we  have  mentioned,  are  inflicted  for  the 
offences  therein  described.  This  account  of  the  offence  of  praemunire,  and 
its  punishment,  is  taken,  or  rather  copied,  from  sir  "William  Blackstone's 
4th  Commentary,  chap.  8. 

II.  WITH  RESPECT  TO  THE  LA  WS,  WHICH,  SINCE  THE 
SEPARATION  OF  THE  CHURCH  OF  ENGLAND  FROM  THE 
CHURCH  OF  ROME,  AT  THE  TIME  OF  THE  REFORMATION^ 
HAVE  BEEN  PASSED  AGAINST  THOSE  WHO  REMAINED  IN 
COMMUNION  WITH  THE  SEE  OF  ROME,— the  laws  against  them  may 
be  reduced  under  five  heads  : — II.  1st.  The  first  are  those,  which  subject  them  to 
peva/ties  and  punishments  for  exercising  their  religious  u-orship; — under  which 
head,  may  be  ranked,  the  laws  respecting  their  places  of  education,  and  the  minis- 
tars  of  their  church.  By  these  laws,  if  any  English  priest  of  the  church  of  Rome, 
bjrn  in  the  dominions  of  the  crown  of  England,  came  to  England  from  beyond 
the  seas,  or  tarried  in  England  three  days,  without  conforming  to  the  church, 
he  was  guilty  of  high  treason;  and  those  incurred  the  guilt  of  high  treason, 
who  were  reconciled  to  the  see  of  Rome,  or  procured  others  to  be  reconciled 
to  it.  By  these  laws  also,  papists  were  totally  disabled  from  giving  their 
children  any  education  in  their  own  religion  ;  if  they  educated  their  children, 
at  home,  for  maintaining  the  school-master,  if  he  did  not  repair  to  church,  or 
was  not  allowed  by  the  bishop  of  the  diocese,  they  were  liable  to  forfeit  10_/. 
a  month,  and  the  school-master  was  liable  to  forfeit  forty  shillings  a  day;  if 
they  sent  thoir  children  for  education  to  any  school  of  their  persuasion  abroad, 
they  were  liable  to  forfeit  100/.  and  the  children  so  scut  wore  disabled  from 
inheriting,  purchasing  or  enjoying  any  lands,  profits,  goods,  debts,  duties, 
legacies,  or  sums  of  money. — Saying  mass  was  punishable  by  a  forfeiture  I'f 
200  marks  :  hearing  it  by  a  forfeiture  of  100.  See  1  Eiiz.  ch.  2.  23  Eliz.  ch.  1. 
°       ^  27  Eliz. 


I 


L.  3.  C.  13.  Sect  745.      Of  Warrantie.  [391.  a. 

body,  lands,  and  goods,  and  the  like,  these  are  not  extended  to 
the  lossc  of  life  or  member,  but  to  imprisonment,  lands  and 

goods. 

27  Eliz.  eh.  2.  29  Eliz.  ch.  6.  35  Eliz.  eh.  2.  2  Jac.  1.  eh.  4.  3  Jac.  1. 
ch.  4,  5.  7Jac.  l.ch.  6.  3Car.  l.ch.  2.  25  Car.  2.  ch.  2.  7  &  8  W.  3.  ch. 
27.  1  Geo.  1.  ch.  13. — II.  2d.  Under  the  second  head  were  those  laws  which 
punished  the  English  communicants  with  the  church  of  Rome  for  not  conform- 
ing to  the  established  church.  These  are  generally  called  the  statutes  of  recu- 
sancy. It  should  be  observed,  that,  absence  from  church,  alone,  and  unac- 
companied by  any  other  act,  constitutes  recusancy,  in  the  true  sense  of  that 
word.  Till  the  statute  of  the  35  Eliz.  chap.  2 .  all  nonconformists  were  considered 
as  recusants,  and  were  all  equally  subject  to  the  penalties  of  recusancy  :  that 
statute  was  the  first  penal  statute  made  against  popish  recusants,  by  that  name, 
and  as  distinguished  from  other  recusants.  From  that  statute  arose  the  dis- 
tinction between  protestant  and  popish  recusants  ;  the  former  were  subject  to 
such  statutes  of  recusancy,  as  preceded  that  of  the  35th  of  queen  Elizabeth, 
and  to  some  statutes  against  recusancy,  made  subsequently  to  that  time ;  but 
they  were  relieved  from  them  all  by  the  act  of  toleration,  in  the  1st  year  of 
king  William's  reign.  From  the  35th  Eliz.  c.  2.  arose  also  the  distinction, 
between  papists  and  persons  professing  the  popish  religion,  and  popish  recusantse 
and  popish  recusants  convict.  Notwithstanding  the  frequent  mention  in  the 
statutes,  of  papists  and  persons  professing  the  popish  religion,  neither  the 
statutes  themselves,  nor  the  cases  adjudged  upon  them,  present  a  clear  notion 
of  the  acts  or  circumstances  that,  in  the  eye  of  the  law,  constituted  a  jxipist, 
or  a  person  professing  the  pojnsh  religion.  When  a  person  of  that  description 
absented  himself  from  church,  he  filled  the  legal  description  of  a  popish  recu- 
sant :  When  he  was  convicted  in  a  court  of  law  of  absenting  himself  from 
church,  he  was  termed  in  the  law  a  popish  recusant  convict:  to  this  must  be 
added  the  constructive  recusancy  hereinafter  mentioned  to  be  incurred  by  a 
refusal  to  take  the  oath  of  supremacy. — With  respect  to  the  statutes  against 
recusancy ;  by  these  statutes,  popish  recusants  convict  were  punishable  by  the 
censures  of  the  church,  and  by  a  fine  of  20?.  for  every  month  during  which 
they  absented  themselves  from  church ;  they  were  disabled  from  holding 
offices  or  emoluments;  from  keeping  arms  in  their  houses ;  from  maintaining 
actions  or  suits  at  law  or  in  equity ;  from  being  executors  or  guardians ;  from 
presenting  to  advowsons;  from  practising  in  the  law  or  physic;  and  from 
holding  offices,  civil  or  military :  they  were  subject  to  the  penalties  attending 
excommunication,  were  not  permitted  to  travel  five  miles  from  home,  unless 
by  license,  upon  pain  of  forfeiting  all  their  goods;  and  might  not  come  to  court 
under  pain  of  100/.  A  married  woman,  when  convicted  of  recusancy,  was 
liable  to  forfeit  two-thirds  of  her  dower  or  jointure.  She  could  not  be  executrix 
or  administratrix  to  her  husband,  nor  have  any  part  of  his  goods ;  and,  during 
her  marriage,  she  might  be  kept  in  prison,  unless  her  husband  redeemed  her  at 
the  rate  of  10?.  a  month,  or  the  third  part  of  his  lands ;  popish  recusants 
convict  were,  within  three  months  after  conviction,  either  to  submit  and  re- 
nounce their  religious  opinions,  or,  if  required,  by  four' justices,  to  abjure  the 
realm :  and  if  they  did  not  depart,  or  if  they  returned  without  license,  they 
were  guilty  of  felony  and  were  to  suffer  death  as  felons. — (See  the  statutes  re- 
ferred to  under  the  former  head.) — II.  3.  As  to  thepenalties  or  disabilities  attend- 
ing the  refusal  of  Roman  catholics  to  take  the  oath  of  supremacy,  the  declara- 
tion against  irunsuhstantiation,  and  the  declaration  against  popery :  It  must  be 
premised,  that,  Roman  catholics  make  no  objection  to  take  the  oath  of  alle- 
giance, 1  G.  1.  St.  2.  c.  13.  or  the  oath  of  abjuration,  6  Geo.  3.  c.  53. —  With  respect 
to  the  oath  of  supremacy, — by  the  1st  Elizabeth,  ch.  1.  the  persons  therein 
mentioned  were  made  compellable  to  take  the  oath  of  supremacy  contained  in 
that  act :  by  the  3d  of  king  James  the  1st.  ch.  4.  another  oath  was  prescribed 
to  be  taken,  commonly  called  the  oath  of  allegiance  and  obedience  :  these 

oaths 


391.  a.  ]  Of  Warrantie.       L.  3.  C.  13.  Sect.  745. 

[.?]  'W.  2  cap.       goods,     [g]  But  if  an  act  of  parliament  saith,  Eeit  judgement  de 
25  E  1  *  ^^^  ^^  member^  or  suheat  Judicium  vitse  vel  membrorum,  in  that 

1  E.  2.  de  frang.  prisonam.  14  E.  3.  cap.  10.  Stanf.  PI.  Coron.  30,  31.  3  E.  3. 
Coron.  153.  Brooke,  tit.  Coron.  203.  9  E.  4.  26.  (11  Rep.  2.  23  H.  8.  25  H.  8. 
38  H.  6.  by  18  EUz,  25  Ed,  3.)  (11  Rep.  291.  4  Inst.  123.)  4  Mod.  128. 
(Show.  353.) 

case 

oaths  were  abrogated  by  the  1st  of  king  William  and  queen  Mary,  sess.  1.  ch. 
8.  and  a  new  oath  of  allegiance  and  a  new  oath  of  supremacy  were  introduced, 
and  required  to  be  taken  in  their  stead :  the  statute  made  in  the  2d  session  of 
the  1st  year  of  king  George  the  1st.  ch.  13.  contains  an  oath  of  supremacy,  in 
the  same  words  as  the  oath  of  supremacy  required  to  be  taken  by  the  1st  of 
king  William  and  queen  Mary.  By  that  oath,  persons  are  made  to  swear,  that 
''  no  foreign  prince,  person,  prelate,  state  or  potentate,  hath,  or  ought  to  have, 
''  any  jurisdiction,  power,  supremacy,  pre-eminence  or  authority,  ecclesiastical 
"  or  spiritual,  within  the  realm."  It  was  required  to  be  taken  by  the  persons 
therein  named ;  it  might  be  tendered  to  any  person,  by  any  two  justices  of  the 
peace;  and  persons  refusing  the  oath  so  tendered  were  adjudged  to  be  popish 
recusants  convict,  and  to  forfeit  and  to  be  proceeded  against  as  such.  This 
was  the  constructive  recusancy  referred  to  above.  It  was  not  the  offence  itself 
of  recusancy,  which,  as  we  have  already  observed,  consisted  merely  in  the 
party's  absenting  himself  from  church :  it  was  the  offence  of  not  taking  the 
oaths  of  supremacy,  and  the  other  oaths  prescribed  by  the  act  of  1  Geo.  1.  the 
refusal  of  which,  was,  by  that  statute,  placed  on  the  same  footing  as  a  legal 
conviction  on  the  statutes  of  recusancy,  and  subjected  the  party  refusing  to  the 
penalties  of  those  statutes.  This  was  the  most  severe  of  all  the  laws  against 
papists.  The  punishment  of  recusancy  was  penal  in  the  extreme ;  and  the 
persons  objecting  to  the  oath  in  cjuestion,  might  be  subjected  to  all  the  penal- 
ties of  recusancy,  merely  by  their  refusing  the  oath,  when  tendered  to  them. 
It  added  to  the  penal  nature  of  these  laws,  that  the  oath  in  question  might  be 
tendered,  at  the  mere  will  of  two  justices  of  peace,  without  any  previous  in- 
formation or  complaint  before  a  magistrate,  or  any  other  person.  Thus,  by 
refusing  to  take  the  oath  of  supremacy,  when  tendered  to  them,  they  became 
liable  to  all  the  penalties  of  recusancy ;  and  the  same  refusal,  by  7  &  8  Wm. 
3.  ch.  24.  and  1  Geo.  1.  st.  2.  ch.  13.  restrained  them  from  practising  the  law 
as  advocates,  barristers,  solicitors,  attornies,  notaries,  or  proctors,  and  from 
voting  at  elections. — II.  4.  With  respect  to  receiving  the  sacrament  of  onr  hordes 
Supper :  By  the  13  Charles  2.  (commonly  called  the  corporation  act),  no  per- 
son can  be  legally  elected  to  any  office,  relating  to  the  government  of  any  city 
or  corporation,  unless,  within  a  twelve  month  before,  he  has  received  the  sacra- 
ment of  the  Lord's  supper,  according  to  the  rites  of  the  church  of  England ; 
and  he  is  also  enjoined  to  take  the  oaths  of  allegiance  and  supremacy,  at  the 
same  time  that  he  takes  the  oath  of  office,  or,  in  default  of  either  of  these 
requisites,  such  election  shall  be  void. — II.  5.  As  to  the  declaration  against 
transiibstantiation :  By  the  25  Car.  ch.  2.  (commonly  called  the  test  act),  all 
officers,  civil  and  military,  are  directed  to  take  the  oath,  and  make  the  decla- 
ration against  transubstantiation,  in  the  court  of  King's  Bench  or  Chancery, 
the  next  term,  or  at  the  next  quarter  sessions,  or  (by  subsecjuent  statutes,) 
within  six  months  after  their  admission,  and  also,  within  the  same  time,  to 
receive  the  sacrament  of  the  Lord's  Supper,  according  to  the  usage  of  the 
church  of  England,  in  some  public  church,  immediately  after  divine  service 
and  sermon ;  and  to  deliver  into  court,  a  certificate  thereof,  signed  by  the 
minister  and  churchwarden ;  and  also  to  prove  the  same,  by  two  credible  wit- 
nesses, upon  forfeiture  of  500?.  and  disability  to  hold  the  office. — II.  6.  With 
respect  to  the  declaration  against  popery  :  The  act  passed  in  the  30th  year  of 
Car.  2.  St.  2.  ch.  1.  contains  the  declaration,  and  prescribes  it  to  be  made,  by 
members  of  either  house  of  parliament,  before  they  take   their  seats.     By 

it, 


L.  3.  C.  13.  Sect.  745.      Of  Warrantie.  [391.  l\ 

case  judgement  of  death  shall  be  given,  as  in  case  of 

[391. "I  felonie,  viz.  that  he  be  0^  hanged  by  the  necke  till  he 
b.     J  be  dead,  and  consequently  his  bloud  is  corrupted  (as 
our  author  here  saith),  and  shall  forfeit  as  in  case  of 
felonie. 

There 

it,  they  declare  their  disbelief  of  the  doctrine  of  transubstantiation,  and  their 
belief  that  the  invocation  of  saints,  and  the  sacrifice  of  the  mass,  are  idola- 
trous.— II.  7.  With  respect  to  the  laws  affecting  their  landed  property :  How 
this  was  affected  by  the  law  against  recusancy  has  been  already  mentioned. 
By  the  11  &  12  W.  3.  ch.  4.  it  was  enacted,  that  a  person  educated  in  the 
popish  religion,  or  professing  the  same,  who  did  not,  in  six  months  after  the 
age  of  eighteen  take  the  oaths  of  allegiance  and  supremacy,  and  subscribe  the 
declaration  of  the  30th  Cha.  2.  should,  in  respect  of  himself  only,  and  not  of 
his  heirs  or  posterity,  be  disabled  to  inherit,  or  take  lauds  by  discent,  devise, 
or  limitation,  in  possession,  reversion,  or  remainder:  and  that  during  his  life, 
till  he  took  the  oaths,  and  subscribed  the  declaration  against  popery,  his  next 
of  kin,  who  was  a  protestant,  should  enjoy  the  lands,  without  accounting  for 
the  profits  ;  and  should  be  incapable  of  purchasing  ;  and  that  all  estates,  terms, 
interests  or  profits  out  of  the  lands,  made,  done,  or  suffered  to  his  use,  or  in 
trust  for  him,  should  be  void.  By  3  Jac.  1.  ch.  5.  1  W.  &  M.  c.  26. 12  Ann. 
St.  2.  0.  14.  and  11  Geo.  2.  c.  17.  papists,  or  persons  professing  the  popish 
religion,  were  disabled  from  presenting  to  advowsons,  and  other  ecclesiastical 
benefices,  and  to  hospitals  and  other  charitable  establishments.  By  annual 
acts  of  the  legislature,  papists,  being  of  the  age  of  18  years,  and  not  having 
taken  the  oaths  of  allegiance  and  supremacy,  were  subjected  to  the  burthen  of 
the  double  land-tax.  By  a  statute  made  in  the  second  session  of  the  first 
year  of  Geo.  1st.  ch.  55.  they  were  required  to  register  their  names  and 
estates  in  the  manner,  and  under  the  penalties  therein  mentioned ;  and  by  the 
8d  Geo.  1.  c.  18.  continued  by  several  subsequent  statutes,  an  obligation  of 
enrolling  their  deeds  and  wills  was  imposed  on  them.  Such  were  the  principal 
penal  laws  against  Roman  catholics,  immenms  aliarum  super  alias  acerva- 
tarum  legum  cumulus  (Liv.  3.  34.)  at  the  time  of  the  accession  of  the  house  of 
Brunswick. 

III.  WITR  RESPECT  TO  THE  LAWS  WHICH  WERE  PASSED 
IN  HIS  LATE  MAJESTY'S  REIGN  FOR  THE  RELIEF  OF  RO- 
MAN CATHOLICS.— III.  1.  The  only  act  of  any  importance,  which,  till 
the  reign  of  his  late  majesty,  was  passed  for  their  relief,  (and  that  operated  but 
indirect  manner  for  their  benefit,)  was  the  act  of  the  3f?  Geo.  1.  c.  18.  On  the 
construction  of  the  11  &  12  Wm.  3.  ch.  4.  it  had  been  held,  that  as  it  expressly 
confined  the  disability  of  papists  to  take  by  discent  to  themselves  only,  and 
preserved  their  heirs  and  posterity  from  its  operation,  it  was  not  to  be  construed 
as  preventing  the  vesting  of  the  freehold  and  inheritance  in  them,  in  cases  of 
descent,  or  transmitting  them  to  their  posterity :  but  that  the  disability  respected 
only  the  pernancy  of  the  profits,  or  beneficial  property  of  the  lands,  of  which  it 
deprived  them  during  their  non-conformity.  Whether  that  part  of  the  statute, 
which  relates  to  their  taking  by  purchase,  should  receive  the  same  construction, 
was  a  frequent  subject  for  discussion,  the  statute,  being  in  that  branch  of  it, 
without  any  limitation.  To  remedy  this  the  act  we  are  speaking  of  was  passed  : 
it  enacts  that  no  sale,  for  a  full  and  valuable  consideration,  by  the  owner  or 
reputed  owner  of  any  lands,  or  of  any  interest  therein,  theretofore  made  or  there- 
after to  be  made,  to  a  protestant  purchaser,  shall  be  impeached,  by  reason  of 
any  disability  of  such  papist,  or  of  any  person  under  whom  he  claims,  in  conse- 
quence of  the  11  &  12  W.  3.  unless  the  person  taking  advantage  of  such  dis- 
ability shall  have  recovered  before  the  sale,  or  given  notice  of  his  claim  to  the 
purchaser,  or  before  the  contract  for  sale,  shall  have  entered  his  claim  at  the 
quarter  sessions,  and  lona  fide  pursued  his  remedy.     The  act  then  recites  the 

clauses 


391 .  b.]  Of  Warrantie.         L.  3.  C.  13.  Sect.  745. 

[h]  Bract,  lib.  4.  [^/j]  There  is  also  a  court  of  the  constable  and  marshall,  who 
48  e"  3  3  have  conusance  of  contracts  of  deeds  of  armes,  and  of  warre  out 

13  R.  2.  cap.  2.  Rot.  Pari.  21  R.  2.  nu.  19.  1  H.  4.  c.  14.  13  H.  4.  4.  &  5. 
37  H.  6.  21.  Rot.  Pari.  8.  R.  2.  nu.  31.  Fortesc.  cap.  32.  Rot.  Pari.  2  H.4.  74. 
11  H.  4.  24.  30  H.  6.  6.  Staunf.  PI.  Cor.  65.  Stat,  de  Assignat.  4  E.  1.  Br.  Cor. 
196.  Rot.  Pari.  2  H.  6.  nu.  9.  Rot.  Pari.  5  H.  4.  nu.  39.  Rot.  Vase.  9  H.  4. 
nu.  14.  8  H.  6.  nu.  38.  21  E.  4.  17.  b.  Catesby.  10  H.  7.  per  Vavasor.  18  E.  2. 
Quar.  Imp.  175.  6  E.  3.  41.  Pasc.  14  E.  3.  in  Scac.  le  Count,  de  Kent's  case,  p. 
39  E.  3.  cor.  Reg.  Rot.  49.  le  Count,  de  Lane.  ease.  Rot.  Pari.  28  E.  3.  nu.  8.  Mor- 
timer's case.     Rot.  Pari.  28  E.  3.  nu.  13.  le  Countes  de  Arundel's  case. 

of 

clauses  of  the  11  &  12  W.  3.  disabling  papists  from  purchasing  ;  and  afterwards 
enacts  that  these  clauses  shall  not  be  thereby  altered  or  repealed  but  shall  re- 
main in  full  force.  This  proviso  is  couched  in  such  general  words,  that  it 
created  a  doubt  in  some,  whether  it  did  not  nearly  frustrate  the  whole  effect 
of  the  act.  To  this  it  was  answered,  that,  notwithstanding  the  proviso,  the 
enacting  part  of  the  statute  was  in  full  force  for  the  benefit  of  a  protestant 
purchaser ;  and  that  the  proviso  operated  only  to  declare,  that  papists  them- 
selves should  not  derive  any  benefit  from  the  act,  in  any  purchases  they  should 
attempt  to  make  under  the  foregoing  clauses.  This  was  considered  the  better 
opinion,  and  on  the  authority  of  it  many  purchases  of  considerable  consequence 
were  made.  See  also  6  Greo.  2.  ch.  5.  Thus  the  laws  against  Roman  catholics 
stood  at  the  time  of  the  accession  of  his  late  majesty.  During  his  reign 
two  acts,  each  of  great  importance,  were  passed  in  their  favour. — III.  2.  B^ 
that  of  the  ISth  ofhisreign,  ch.  60.  it  was  enacted  that  so  much  of  the  11  &  12 
W.  3.  as  related  to  the  prosecution  of  popish  priests  and  Jesuits,  and  imprison- 
ing for  life  papists,  who  keep  schools,  or  to  disable  papists  from  taking  by  de- 
scent or  purchase,  should  be  repealed,  as  to  all  papists  or  persons  professing 
the  popish  religion,  claiming  under  titles  not  theretofore  litigated,  who  within 
six  months  after  the  act  passed,  or  their  coming  of  age,  should  take  the  oath 
thereby  prescribed.  Upon  this  act,  a  case  was  decided  in  chancery,  on  the  18th 
of  December  1783,  under  the  name  of  Bunting  v.  Williamson.  In  that  case, 
a  bill  had  been  filed,  claiming  an  estate  given  to  a  person  professing  the 
popish  religion,  by  will,  alleging  the  incapacity  occasioned  by  the  act  of  the 
11th  and  12th  of  king  William.  The  testator  died  many  years  before,  and 
after  his  death  a  suit  had  been  instituted  by  another  person  who  claimed  as 
his  heir  at  law,  and  that  suit  was  depending  at  the  time  when  the  statute  of  the 
18th  Geo.  3.  c.  60.  was  passed;  but  was  afterwards  dismissed  for  want  of 
prosecution.  The  plaintiff  filed  his  bill,  some  time  after  the  act,  claiming  in 
right  of  his  wife  as  heir  at  law.  The  defendants  pleaded  their  title  under  the 
testator's  will;  and,  that  the  defendant,  who  was  beneficially  interested,  having 
or  claiming  the  estate  under  that  will,  had  taken  the  oath  prescribed  by  the 
act,  and  concluded  with  an  averment,  that  the  title  had  not  been  before  liti- 
gated by  the  plaintiff,  or  any  person  under  whom  he  claimed.  The  plaintiff, 
on  argument  of  the  plea,  contended,  that  the  words  not  hitherto  litigated,  ex- 
tended to  the  case  then  before  the  court,  because  the  title  had  been  litigated, 
and  was  in  litigation  at  the  time  the  act  passed.  But  the  lords  commissioners, 
Ashhurst  and  tlotham,  were  clearly  of  opinion,  that  the  plaintiff  not  having 
before  litigated  the  title,  nor  claiming  under  any  person  who  had  litigated  it, 
the  case  of  the  defendants  was  within  the  benefit  of  the  act,  notwithstanding 
the  prior  litigation  ;  and  the  plea  was  allowed. — III.  3.  With  respect  to  the  act 
of  the  31s;  of  his  late  majesty,  cap.  32.  That  statute  may  be  divided  into 
six  parts  :  The  1st  contains  the  declaration  and  oath  afterwards  referred  to 
in  the  body  of  the  act,  and  prescribes  the  method  of  taking  it :  The  2d,  is  a 
repeal  of  the  statutes  of  recusancy,  in  favour  of  persons  taking  the  oath 
thereby  prescribed :  The  3d,  is  a  toleration,  under  certain  regulations,  of  the 
religious  worship  of  the  Roman  catholics,  qualifying  in  like  manner,  and  of 
their  schools  for  education :  The  4th  enacts,  that,  in  future  no  one  shall  be 

summoned 


L.  3.  C.  13.  Sect.  745.      Of  Warrantie.  [391.  b. 

of  the  realme  and  also  of  ihings  touching  warre  within  the  realme, 
which  may  not  be  determined  or  discussed  by  the  common  law, 
and  also  all  appeales  of  offences  dune  out  of  the  realme,  and  they 
proceed  according  to  the  civil  law:  but  these  things  more  pro- 
perly pertaine  to  another  kind  of  treatis-c,  and  therefore  I  shall 

speak e 

summoned  to  take  the  oath  of  supremacy  prescribed  by  the  1st  Wm.  &  Mary, 
sect.  1.  c.  8.  and  1st  Geo.  1.  sect.  2.  cap.  13.  or  the  declaration  against  tran- 
substantiation  required  by  the  25th  Ch.  2. — that  the  1st  Wm.  &  Mary,  sect.  1. 
ch.  9.  for  removing  papists  or  reputed  pnpists  from  the  cities  of  London  and 
Westminster  shall  not  extend  to  lloman  caiholics  taking  the  appointed  oath; — 
and  that  no  peer  of  Great  Britain  or  Ireland,  taking  that  oath,  shall  be  liable 
to  be  prosecuted  for  coming  into  his  majesty's  presence,  or  into  the  court  or 
house  where  his  majesty  resides,  under  the  oOth  Car.  2.  stat.  2.  ch.  1  :  The 
5th  part  of  the  act,  repeals  the  laws  requiring  the  deeds  and  wills  of  Roman 
catholics  to  be  registered  or  enrolled :  The  6th  dispenses  persons  acting  as  a 
counsellor  at  law,  barrister,  attorney,  clerk,  or  notary,  from  taking  the  oath  of 
supremacy,  or  the  declaration  against  transubstantiation. 

The  declaration  prescribed  by  the  act  is  contained  in  these  words;  "I,  A.  B. 
"  do  hereby  declare  that  I  do  profess  the  Roman  catholic  religion."  Till  the 
passing  of  this  act,  the  persons,  who  were  the  subjects  of  it,  were  known  in  the 
English  law  by  the  name  of  papists,  reputed  papists,  or  persons  professing 
the  popish  religion.  By  requiring  this  declaration  from  them,  the  law  has 
imposed  on  them,  and  probably  will  in  future  recognize  them  by,  the  name  of 
Roman  catholics.  Still  when  the  ancient  penal  laws  against  them  are  to  be 
mentioned  with  professional  accuracy,  it  may  sometimes  be  found  necessary, 
(and  this  necessity  has  been  experienced  in  the  course  of  this  annotation,)  to 
mention  them  under  the  name  applied  to  them  by  the  abrogated  law. 

It  is  observable,  that,  as  the  bill  was  originally  framed,  and  as  it  stood,  when, 
having  passed  the  commons,  it  was  brought  into  the  house  of  lords,  the  first 
clause  in  it  directed,  that  the  oath  contained  in  the  act  of  the  18th  year  of  the 
reign  of  his  late  majesty  should  be  taken  no  longer;  but  that,  the  oath  ap- 
pointed by  the  bill,  should,  in  future,  be  administered  in  its  stead,  and  should 
give  the  same  benefits  and  advantages,  and  should  operate  to  the  same  eflfects 
and  purposes,  as  the  oath  contained  in  the  18th  of  his  late  majesty.     This 
clause  was  altered  in  the  house  of  lords  to  the  form  in  which  it  now  stands. 
It  does  not  express,  that  the  oath  contained  in  it  shall  entitle  the  persons 
taking  it  to  the  benefits  of  the  act  of  the  18th  of  his  late  majesty:  it  only 
expresses,  that,  it  shall  be  lawful  for  catholics  to  take  the  oath  of  the  31st  of 
his  late  majesty,  at  the  places  and  times,  and  in  the  manner  therein  mentioned. 
Thus,  it  was  very  uncertain,  whether  persons  taking  only  the  oath  prescribed 
by  the  31st  of  his  late  majesty  would  be  entitled  to   the  benefit  of  the  act 
of  the  18th  of  his  late  majesty,  so  as  to  be  relieved  from  the  penalties  and 
disabilities  from  which  the  persons  taking  the  oath  prescribed  by  that  act  were 
released  by  it.     The  chief  of  these  penalties  and  disabilities  were  those  inflicted 
by  the   11th   &  12  W.  3.  which   disabled   them  from   taking  by  disccnt  or 
purchase.     From  these  penalties  and  disabilities  they  were  exposed  to  much 
real  grievance.     It  seemed,  therefore,  advisable   for    every  Roman  catholic, 
who  wished  to  be  secure  in  the  enjoyment  of  his  landed  property,  to  take  both 
the  declaration  and  oath  prescribed  by  the  act  of  the  31st  and  the  oath  pie- 
scribed  by  the  18th  of  his  late  majesty.  But  this  uncertainty  was  remedied  by 
the  act  of  the  43d  of  his  late  majesty,  chapter  30.  which   provided  that  tl;e 
oath  and   declaration,  contained  in  the  31st  of  his  late  majesty,  should   give 
the  benefit  of  the  oath  contained  in  the  18th  of  his  late  majesty,  and  thus 
made  the   taking  of  both  unnecessary. — III.  4.  .4s  to  the  donUe  land-tax, 
that,  beino'  imposed  by  the  annual  land-tax  act,  a  repeal  of  it  could  not  be  ef, 
fected  by  any  prospective  act.     It  is  repealed  by  omitting  from  the  annual  land- 
tax  act,  the  clause  imposing  it.     The  laud-tax  act  of  the  year  1794  contain- 
also 


391.  b.]  Of  Warrantie.       L.  3.  C.  13,  Sect.  745. 

speake  no  more  thereof  in  this  place,  but  only  for  the  satisfac- 
tion of  the  studious  reader,  to  quote  some  authorities  of  law 
touching  the  jurisdiction  of  the  court,  that  he  may  have  some 
taste  thereof. 

In 

also  a  clause,  which,  after  reciting,  that,  lands  formerly  liable  to  a  double  as- 
sessment, were  then  possessed  by  protestants,  enacted,  that  where  any  place, 
in  consequence  of  that  circumstance,  should  be  rated  at  more  than  four  shil- 
lings in  the  pound,  the  commissions  might,  on  complaint,  examine  into  the 
truth  of  the  complaint,  and  certify  the  same  to  the  barons  of  the  exchequer, 
before  the  29th  of  the  following  September,  who  were  to  discharge  the  excess 
by  the  following  November. 

It  remains  to  add,  that  by  the  57th  Geo.  3.  c.  92.  for  regulating  the  adminis- 
tration of  oaths,  in  certain  cases,  to  officers  in  his  majesty's  land  and  sea 
forces,  after  reciting  "that,  by  certain  acts  passed  in  the  reigns  of  his 
majesty's  royal  predecessor,  it  was  provided,  that  officers  in  his  majesty's 
royal  navy,  and  officers  in  his  majesty's  army,  should  take  certain  oaths,  and 
make  and  subscribe  certain  declarations,  before  they  should  enter  upon  the 
offices,  or  places  of  trust,  to  which  they  might  be  appointed;  and  that  doubts 
had  been  entertained,  whether  the  provisions  of  the  said  acts  were  still  in  force 
in  that  behalf;  and  that  the  practice  of  taking  the  said  oaths,  and  making  and 
sub:scribing  the  said  declaration,  by  officers,  previous  to  their  receiving  com- 
missions in  his  majesty's  army,  had  been  long  disused;  and  that  it  was  expe- 
dient to  remove  such  doubts,  and  to  assimilate  the  practice  of  the  two  services; 
it  was  enacted,  that  after  the  passing  of  the  act  it  should  be  lawful  for  his 
majesty's  principal  secretaries  of  state,  the  lord  high  admiral  of  the  united 
kingdom  of  Great  Britain  and  Ireland,  or  the  commissioners  for  executing  the 
office  of  lord  high  admiral,  the  commander  in  chief  of  his  majesty's  land 
forces,  the  master  general  of  the  ordnance,  and  the  secretary  at  war  for  the 
time  being,  respectively,  or  any  other  persons  thereunto  lawfully  authorized,  to 
deliver  commissions  or  warrants  to  any  officer  or  officers  in  his  majesty's  royal 
niivy,  land  forces,  or  royal  marines,  without  previously  requiring  such  officer  or 
officers  to  take  the  said  oaths,  or  make  and  subscribe  the  said  declaration." 

IV.  WITH  RESPECT  TO  THE  COMPARATIVE  SITi^TIOiY  OF 
THE  PROTESTANT  DISSENTERS  AND  THE  ROMAN  CATHO- 
LICS, AS  TO  THE  PENALTIES  AND  DISABILITIES  TO  WHICH 
THEYARE  SUBJECTED  BY  LA  IF,  INCONSEQUENCE  OF  TIIEHi 
RELIGIOUS  PRINCIPLES;— \t  has  been  already  shown,  how  the  law 
stauls  on  the  corporation  and  test  acts. — IV.  1.  The  statute  of  the  1st  William 
anl  Mary,  (commonly  called  the  toleration  act),  exempts  all  dissenters,  except 
papists  and  such  as  deny  the  Trinity,  from  all  penal  laws  relating  to  religion, 
provided  they  take  the  oaths  of  allegiance  and  supremacy,  and  subscribe  the 
declaration  against  popery,  and  repair  to  some  congregation  registered  in  the 
bishop's  court,  or  at  the  sessions.  But  there  is  nothing  in  this  act,  which  dis- 
penses, either  with  the  test  act  or  the  corporation  act,  so  far  as  they  impose 
the  obligation  of  receiving  the  sacrament  of  our  Lord's  Supper  on  persons 
serving  in  offices,  or  elected  to  serve  in  corporations;  and  there  is  nothing 
in  the  act  of  the  31st  of  his  late  majesty,  which  dispenses  catholics  from  that 
oblig:itioa,  in  case  of  their  serving  in  offices,  or  being  admitted  into  corpora- 
tions. With  respect  therefore  to  the  tent  act  and  corjjorafivn  act,  these  are  the 
only  acts  which  subject  the  protestant  dissenters  to  any  penalties  or  disabilities; 
to  these  the  Roman  catholics  are  subject  equally  with  the  protestant  dissenters; 
there  is,  therefore,  no  penalty  or  disability  that  aii'ects  the  protestant  dissenters, 
to  which  Roman  catholics  are  not  subject  equally,  but  there  still  remain  several 
penalties  and  disabilities  to  which  R(jmau  catholics  are  subject,  that  do  not  in 
any  respect  affect  the  protestant  dissenters.  The  principal  of  these  are,  that 
by  the  30  Car.  2.  Roman  catholics,  in  consequence  of  refusing  the  oath  of  su- 
premacy, or  the  declaration  against  popery,  are  disabled  from  sitting  in  either 

house 


L.  3.  C.  13.  Sect.  745.     Of  Warrantie.  [391.  b. 

In  the  same  manner  it  is,  if  a  man  be  attainted  of  high-trea- 
son, the  warrantie  is  also  defeated. 

"  The  Hood  is  comipted  betweene  them,  d;c."    [*]  Aptly  is  a  [*]Staunf.lib.3. 
man  said  to  be  attainted,  attinctus,  for  that  by  his  attainder  of  27  e°3.  77!    " 
13  H.  4.  8.    Vid.  Lit.  lib.  1.  in  the  Chap,  of  Dower,    (3  Inst.  240.) 

treason 

house  of  parliament;  by  the  7th  &  8th  of  Wm.  3.  ch.  27.  those  who  refuse  to 
take  the  oath  of  supremacy  are  disabled  from  voting  at  elections;  and  by  seve- 
ral statutes,  Roman  catholics  are  disabled  from  presenting  to  advowsons.  This 
is  peculiar  to  them,  Quakers  and  even  Jews  having  the  full  enjoyment  of  the 
right  of  presentation.  It  is  to  be  observed,  that  no  person  can  be  presented  to 
a  living  who  has  not  been  ordained  according  to  the  rites  of  the  church  of 
England.  Previously  to  his  ordination  he  is  examined  on  his  faith  and  morals 
by  his  bishop;  he  takes  the  oath  of  allegiance  and  supremacy,  and  subscribes 
the  39  articles;  and  previously  to  his  admission,' he  subscribes  the  three  articles 
respecting  the  supremacy,  the  Common  Prayer,  and  the  39  articles ;  and  he 
makes  the  declaration  of  conformity.  By  the  act  of  uniformity ,  13  &  14  Car. 
2.  c.  4.  he  is  bound  to  use  the  Common  Prayer  and  other  rites  and  ceremonies 
of  the  church  of  England. — IV.  2.  Upon  the  corporation  act,  it  seems  to  have 
been  the  prevailing  opinion,  that  the  election  of  a  person,  who  did  not  comply 
with  the  requisites  of  that  statute,  and  all  the  acts  done  by  him,  were  void.  To 
prevent  the  consequences  of  this,  the  statute  of  the  ^th  Geo.  1 .  was  passed,  inti- 
tuled, ^^  An  act  for  quieting  and  estahlishing  corporations,"  by  which  it  was 
enacted,  that,  no  incapacity,  disability,  forfeiture,  or  penalty  should  be  incur- 
red, unless  the  person  were  removed,  or  a  pi'osecution  against  him  commenced, 
within  six  months  after  his  election.  It  was  also  enacted,  that  the  acts  of  the 
person  omitting  to  qualify  should  not  be  avoided.  Upon  this  act,  an  import- 
ant question  arose,  whether  dissenters,  being  ineligible  to  public  offices,  could 
be  obliged  to  fine  for  not  serving  them.  This  point  came  to  a  direct  issue,  in 
the  case  of  Allen  Evans,  esq.  It  was  finally  heard,  in  the  house  of  lords,  on 
the  4th  February  1767,  when  it  was  determined  in  favour  of  the  dissenters.  For 
the  relief  of  those  who  omit  to  qualify  for  serving  in  ofiices,  or  for  being  elected 
into  corporations,  an  act  of  parliament  is  passed  annually,  by  which,  after  men- 
tioning the  corporation  and  test  acts,  and  some  others,  which  do  not  relate  to 
the  point  under  consideration,  it  is  enacted,  that  persons  who,  before  the  pass- 
ing of  the  act,  have  omitted  to  qualify  in  the  manner  prescribed  by  those  acts, 
and  who  shall  properly  qualify  before  the  25th  of  the  ensuing  December,  shall 
be  indemnified  against  all  penalties,  forfeitures,  incapacities,  and  disabilities, 
and  their  elections,  and  the  acts  done  by  them,  are  declared  to  be  good.  There 
is  nothing  in  this  act  which  excludes  catholics  from  the  benefits  of  it. — IV.  3. 
By  the  militia  act,  it  is  enacted,  that  no  person  shall  be  enrolled  in  the  militia, 
unless  he  takes  the  following  oath:  "I,  A.  B.  do  sincerely  promise  and  swear, 
"  that  I  will  be  faithful  and  bear  true  allegiance  to  his  majesty  King  George, 
"  his  heirs  and  successors.  And  I  do  swear,  that  I  am  a  protestant,  and  that 
"  I  will  faithfully  serve  in  the  militia,  within  the  kingdom  of  Great  Britain,  for 
"  the  defence  of  the  same,  during  the  time  for  which  I  am  enrolled,  unless  I 
"  shall  be  sooner  discharged."  It  seems  to  deserve  consideration,  whether,  under 
the  existing  laws,  catholics  may  not  claim  to  be  exempted  from  serving  in  the 
militia,  upon  the  same  ground,  as,  in  the  cited  case  of  Allen  Evans,  the  protest- 
ant dissenters  claimed,  and  were  allowed  to  be  exempted  from  the  obligation  of 
serving  in  offices,  viz.  That  by  law  they  are  ineligible,  and  consequently  are  not 
compellable  to  fine  for  not  serving. — IV.  4.  With  respect  to  the  rigid  of  Roman 
catholics  to  serve  on  Juries,  there  does  not  appear  to  have  ever  been  any  law 
which  subjected  them  to  any  such  disability,  except  the  statutes  generally 
called  the  statutes  of  recusancy.     The  statute  of  the  13  Car.  2.  commonly 

called 


391.  b.]  Of  Warrantie.      L.  3.  C.  13.  Sect.  745. 

treason  or  felonie  his  bloud  is  so  stained  and  corrupted,  as,  first, 
his  children  cannot  be  heires  to  him,  or  to  any  other  ancestor, 

and 

called  the  corporation  act,  relates  to  those  ofiices  only,  which  concern  the  go- 
vernment of  cities  and  corporations  The  statute  of  the  25th  Car.  2.  com- 
monly called  the  test  act,  (since  explained  by  the  9th  of  Geo.  2.),  regards 
only  civil  and  military  offices.  Neither  of  these  acts,  therefore,  abridges  ca- 
tholics of  the  right  in  question.  With  respect  to  the  statutes  of  recusancy, 
among  other  penalties  to  which  these  subjected  popish  recusants  convict,  one 
was,  that  they  became  liable,  upon  conviction,  to  all  the  consequences  of  ex- 
communication, and  it  has  been  generally  understood,  that  persons  excommu- 
nicated are  disabled  from  serving  on  juries.  We  have  more  than  once  observed, 
that,  in  the  proper  sense  of  the  word,  not  attending  the  service  of  the  church 
of  England,  alone,  and  unaccompanied  by  any  other  circumstance,  constitutes 
recusancy.  Of  this  non-attendance  at  church,  every  Roman  catholic,  necessa- 
rily, was  guilty,  and  he  might  be  convicted  of  it  by  a  very  summary  process. 
But  till  his  guilt  was  established  in  a  judicial  manner,  the  law  did  not  take 
notice  of  it ;  and  therefore,  unless  an  actual  conviction  had  taken  place,  he  was 
not  subject  to  any  of  the  penalties  consequent  to  recusancy.  But  it  has  been 
mentioned,  that  there  was,  besides  this,  a  species  of  constructive  recusancy,  to 
which  every  catholic  was  liable,  by  refusing  to  make  the  declaration  against 
popery,  and  to  take  the  oath  of  supremacy.  This  had  a  more  direct  operation 
on  their  ability  to  serve  as  jurors.  Now  as  well  the  declaration  against  popery, 
as  the  oath  of  supremacy,  might  be  tendered  to  a  catholic  in  the  very  court 
where  he  presented  himself  to  serve  as  a  juryman.  A  refusal  amounted  to  con- 
viction; on  conviction  he  became  subject  to  all  the  penalties  of  excommunica- 
tion, and  one  of  those  penalties,  (at  least,  by  the  opinion  of  the  old  lawyers), 
was  a  disqualification  to  serve  on  juries.  Thus,  it  was  always  in  the  power  of 
the  court,  and  perhaps  of  any  two  magistrates  present,  to  convict,  on  the  spot, 
a  catholic  of  recusancy,  and  thereby  render,  problematical  at  least,  his  capacity 
to  serve  as  juror.  Such  appears  to  have  been  the  situation  of  catholics,  in 
this  respect,  previously  to  the  act  of  the  31st  of  his  late  majesty.  Since  the 
passing  of  that  act,  they  stand,  as  to  the  serving  upon  juries,  in  the  same  pre- 
dicament as  the  rest  of  his  majesty's  subjects.  By  that  statute,  they  are  freed 
from  the  penalties  incident  either  to  positive  or  to  constructive  recusancy.  It 
is  observable,  that  the  8th  section  exempts  the  ministers  of  Roman  catholic 
congi-egations  from  serving  on  juries;  it  seems  to  follow,  that,  without  this 
clause,  they  would  have  been  liable  to  serve,  and  consequently,  that  all  persons 
out  of  the  reach  of  this  clause  are  in  the  eye, of  the  law  subject  to  the  duty, 
and  have,  of  course,  the  capacity  of  serving. — IV.  5.  With  respect  to  the  riyht 
of  Roman  catholic  merchants  to  he  summoned  to  the  meetings  of  British  fac- 
tories ahroad,  it  appears  that  they  have,  and  always  had,  a  right  to  be  admit- 
ted to  them.  The  meetings  of  the  factory  in  Portugal  were  regulated  by  the 
8  Geo.  1.  c.  17.  but  that  act  contains  nothing  which  discriminates  Roman 
catholic  from  other  mei'chants.  All  the  foreign  factories  are,  therefore,  in  this 
respect,  in  the  same  predicament.  Now,  if  Roman  cotholics  are  excluded  from 
factories  by  any  act,  it  must  be  either  by  the  corporation  act,  or  by  the  test 
act.  But  with  respect  to  the  corporation  act,  it  is  to  be  observed,  that  a  fac- 
tory is  not  a  corporation,  in  the  legal  acceptance  of  that  word ;  and  even  if  it 
were,  it  would  not  fall  within  the  operation  of  the  corporation  act,  as  that  is 
confined  to  cities,  corporations,  &c.  within  England  and  Wales,  and  the  town 
of  Berwick  upon  Tweed.  The  operation  of  the  test  act  is  more  extensive  than 
the  operation  of  the  corporation  act;  it  expressly  mentions  his  majesty's  navy, 
the  islands  of  Jersey  and  Guernsey,  and  persons  who  should  be  admitted  into 
any  service  or  employment  in  his  majesty's  or  his  royal  highness's  household, 
within  the  districts  therein  mentioned.  A  factory  abroad  does  not,  therefore, 
fall  within  the  operation  of  that  act.     Besides,  the  privilege  of  being  admitted 

to 


L.  3.  C.  13.  Sect.  745.    Of  Warrantie.  [391.  b. 

and  therefore  the  warrantie  cannot  binde ;  for  thereby  heires 
only  are  to  be  bound. 

Secondly, 

to  the  meetings  of  a  foreign  factory  is  not  an  office,  or  even  a  right,  of  that 
description  which  ftills  within  eitlier  of  those  acts.    There  is  reason  to  suppose, 
that,  in  point  of  fact,  Roman  catholics  have  not  generally  been  summoned  to 
attend  meetings  of  factories  since  the  year  1720.     But  no  person,  who  is  ac- 
quainted with  the  code  of  penal  law  against  lloman  catholics,  particularly  the 
statutes  against  recusancy,  will  be  surprised  at  this  circumstance,  or  draw  any 
argument  from  it  against  the  right  contended  for,  as  the  operation  and  tendency 
of  those  statutes  were  such,  as  induced  Roman  catholics  to  forbear  asserting 
some  of  their  most  valuable  rights,  even  such  as  were  of  the  most  indisputable 
nature,  rather  than  obtrude  themselves  into  public  notice.     If  they  wish  to 
enforce  their  right  of  admission,  or  their  right  of  voting,  they  should  give  notice 
of  their  desire  to  be  summoned,  and  offer  to  attend  at  the  meetings;  then,  if 
admittance  should  be  refused  them,  or  their  votes  rejected,  the  proceedings  will 
be  illegal :  and  not  only  they,  but  all  other  persons  subject  to  the  proceedings 
of  the  factory,  will  be  justified  in  refusing  to  pay  their  contribution-money,  or 
to  comply,  in  any  other  manner,  with  the  resolutions  or  orders  of  the  meeting. 
Besides,  a  refusal  to  admit  them,  to  the  meetings,  is  certainly  a  personal  injury; 
and  wherever  a  personal  injury  is  done  to  an  English  subject  abroad,  the  re- 
medy must  be  sought  in  the  jurisdiction  where  the  cause  of  action  happens,  if 
it  is  subject  to  the  king's  jurisdiction;  if  the  king  has  no  jurisdiction  in  that 
place,  this  necessarily  gives  the  king's  courts  a  jurisdiction,  within  which  it  13 
'  brought,  by  the  known  fiction  of  laying  the  venue  in  some  county  of  England. 
This  is  explained  by  lord  Mansfield,  with  his  usual  clearness  and  ability,  in  his 
argument  in  Mostyn  v.  Fabrigas,  Cowp.  170.   See  also  Phillybrown  v.  Ryland, 
in  1  Stra.  624.     2  Lord  Raymond,  1388.  and  8  Mod.  354.     It  is  to  be  ob- 
served, that,  in  the  great  case  of  Ashby  v.  "White,  where  an  action  was  brought 
against  an  ofiicer  for  refusing  a  man's  vote  at  an  election,  the  only  ground  tor 
questioning  the  action  was,  that,  there,  the  house  of  commons  had  special 
jurisdiction.     See  6  Mod.  45.     1  Salk.  19.     1  Bro.  Pari.  Ca.  45.     This,  it  is 
evident,  does  not  apply  to  the  case  now  under  discussion.     What  has  been  said 
of  the  right  of  Roman  catholics  to  insist  on  being  admitted  to  the  meetings  of 
Enflish  factories,  abroad,  and  of  their  means  of  redress,  in  case  of  refusal,  ap- 
plies, with  proper  qualifications,  to  every  other  case,  of  a  similar  description, 
where  their  right  of  admission,  acting,  or  voting  is  refused  them. — IV.  6. 
With  respect  to  the  rajht  of  Roman  catholics  to  hold  offices  exercisable  abroad : 
— It  has  been  observed,  that  the  corporation  act  extends  only  to  cities,  &c. 
within  England  and  Wales,  and  the  town  of  Berwick  upon  Tweed ;  that  the 
test  act  mentions  only  those  places,  and  his  majesty's  navy,  and  Jersey  and 
Guernsey ;  and  that  the  31st  of  his  late  majesty  repeals  the  statutes  of  recu- 
sancy, and  relieves  from  the  penalties  imposed  on  Roman  catholics  refusing  the 
oath  of  supremacy,  and  the  declaration  against  popery :  it  seems  therefore  to 
follow,  that  no  law  is  now  in  force  which  disables  Roman  catholics  from  hold-, 
intr  offices  wholly  excrciseable  abroad,  or  from  serving  or  holding  office  under 
the  East  India  company,  in  their  foreign  possessions.     Besides,  upon  the  con- 
struction of  these  laws,  and  of  every  other  law  supposed  to  affect  the  Roman 
catholics,  there  seems  reason  to  think,  that,  the  same  spirit,  which  induced  the 
legislature  to  repeal  so  large  a  proportion  of  the  penal  code  against  them,  will 
influence  the  judicature  in  their  construction  of  the  unrepealed  part  of  that 
code,  or  of  any  other  statute  unfavourable  to  them,  in  its  apparent  tendency  or 
operation,  so  far  as  it  may  be  open  to  a  doubtful  interpretation. — [Note  34G.] 

V.  In  favour  of  the  protestant  dissenters,  it  was  enacted,  by  the  9  Greo.  4. 
oh.  17,  that  so  much  of  the  Acts  of  13  Ch.  2.  st.  2.  c.  1.  25  Ch.  2.  ch.  2.  and 
16  Geo.  2.  c.  30.  as  require  the  persons  therein  described  to  receive  the  sacra- 
ment for  certain  purposes,  should  be  repealed. 

VI.  A  repeal 


391.  b.J  Of  Warrantie.     L.  3.  C.  13.  Sect.  745. 

Secondly,  if  he  were  noble  or  gentle  before,  he  and  all  his 
children  and  posteritie  are  by  this  attainder  made  base  and 
ignoble,  in  respect  of  any  nobilitie  or  gentrie  which  they  had 
by  their  birth. 

Thirdly, 


VI.  A  repeal  of  the  acts,  which,  after  the  passing  of  the  act  of  1791,  re- 
mained in  force  against  the  Roman  catholics,  loas  effected  hy  the  act  passed 
for  their  relief  in  the  10th  year  of  George  the  ith.  c.  7. 

Section  1  of  this  Act  recites,  that,  by  various  acts  of  parliament,  certain 
restraints  and  disabilities  were  imposed  on  the  Roman  catholic  subjects  of  his 
majesty,  to  which  other  subjects  of  his  majesty  were  not  liable;  and  recites, 
that,  by  various  acts,  certain  oaths  and  certain  declarations,  commonly  called 
the  declaration  against  transubstantiation,  and  the  declaration  against  transub- 
stantiation  and  the  invocation  of  saints,  and  the  sacrifice  of  the  mass,  as  prac- 
tised in  the  church  of  Rome,  were  or  might  be  required  to  be  taken,  made  and 
subscribed  by  the  subjects  of  his  majesty,  as  qualifications  for  sitting  and 
voting  in  parliament,  and  for  the  enjoyment  of  certain  offices,  franchises  and 
civil  rights  :  it  then  enacts,  that  all  such  parts  of  those  acts  as  require  the  said 
declarations,  or  either  of  them,  to  be  made  or  subscribed  by  any  of  his  ma- 
jesty's subjects,  as  a  qualification  for  sitting  and  voting  in  parliament,  or  for 
the  exercise  or  enjoyment  of  any  office,  franchise,  or  civil  rights,  should  (save 
as  thereinafter  provided  and  excepted),  be  thereby  repealed. 

Section  2  enacts,  that  it  should  be  lawful  for  any  person  professing  the 
Roman  catholic  religion,  and  being  a  peer,  or  member  of  the  house  of  com- 
mons, to  sit  and  vote  in  either  house  of  parliament,  being  in  all  other  respects 
duly  qualified  to  sit  and  vote  therein,  upon  taking  and  subscribing  the  oath 
therein  expressed  and  contained,  instead  of  the  oaths  of  allegiance,  supremacy 
and  abjuration. 

Section  5  enacts,  that  Roman  catholics  may  vote  at  the  election  of  members 
to  serve  in  parliament  for  England  and  for  Ireland,  and  also  to  vote  at  the 
elections  of  representative  peers  of  Scotland  and  of  Ireland,  and  to  be  elected 
such  representative  peers,  (being  in  all  other  respects  duly  qualified)  on  taking 
and  subscribing  the  oath  thereinbefore  appointed  and  set  forth,  instead  of  the 
oaths  of  allegiance,  supremacy  and  abjuration,  and  instead  of  the  declaration 
then  by  law  required ;  and  instead  also  of  several  other  oaths,  as  were  theu 
by  law  required  to  be  taken  by  any  of  his  majesty's  subjects  professing  the 
Roman  catholic  religion,  and  upon  taking  also  such  other  oaths  as  might  then 
be  lawfully  tendered  to  any  persons  offering  to. vote  at  such  elections. 

Sections  8  &  9  provide,  that  so  much  of  any  acts  as  require  the  formula 
contained  in  the  8  &  9  of  Wm.  3.  ch.  .3,  (of  Scotland)  to  be  tendered  or  taken, 
should  be  repealed ;  and  that  Roman  catholics  may  elect  and  be  elected  mem- 
bers to  serve  in  parliament  for  Scotland,  but  that  no  Roman  catholic  priest 
should  sit  in  the  house  of  commons. 

Section  10  enacts,  that  Roman  catholics  may  hold  and  enjoy  all  civil  and 
military  offices  and  places  of  trust,  and  any  other  franchise  and  civil  right, 
except  as  thereinafter  excepted,  upon  taking  and  subscribing  the  oath  therein- 
before appointed  and  set  forth,  instead  of  the  oaths  of  allegiance,  supremacy 
and  abjuration,  and  instead  of  such  other  oaths  as  might  then  be  required  to 
be  taken,  for  the  purpose  aforesaid,  by  any  of  his  majesty's  subjects  professing 
the  Roman  catholic  religion,  (section  11),  but  not  to  exempt  them  from  taking 
other  oaths. 

Section  12  provides,  that  nothing  contained  in  tlie  act  should  extend  to 
enable  any  persons  professing  the  Roman  catholic  religion  to  hold  or  exercise  the 
office  of  guardians  and  Justices  of  the  united  kingdom,  or  of  regent  of  the  united 

kingdom. 


L.  3.  C.  13.  Sect.  745.      Of  Warrantie.  [391.  b. 

Thirdly,  this  corruption  of  bloud  is  so  high,  that  regularly  it 
cannot  be  absolutely  salved  but  by  authoritie  of  parliament :  all 
which  is  implied  in  the  same  (&c.)  (1). 

Sect. 


hingdom  under  whatever  name,  style  or  title  such  office  may  he  constituted,  nor 
to  enable  any  person,  otherwise  than  he  is  now  by  laio  enabled,  to  hold  or 
enjoy  the  office  of  lord  hhjh  chancellor,  lord  keeper  or  lord  commissioner  of  the 
great  seal  of  Great  Britain  or  Ireland,  or  the  office  of  lord  lieutenant  or  lord 
deputy,  or  other  chief  governor  or  governors  of  Ireland,  or  his  majesty's  high 
commissioner  to  the  general  assembly  of  the  church  of  Scotland. 

Section  13  provides,  that  nothing  contained  in  the  act  should  affect  the  act 
of  the  7th  of  his  majesty  king  George  the  4th,  for  consolidating  and  amend- 
ing the  laws  which  regulate  the  levy  and  application  of  church  rates  and  parish 
cesses,  and  the  election  of  churchwardens,  and  the  maintenance  of  parish 
clerks  in  Ireland. 

Sections  14,  15,  16,  17,  and  18  enable  Roman  catholics  to  be  members  of 
any  lay  body  corporate,  and  to  hold  any  civil  office  or  place  of  trust  or  profit 
therein,  upon  taking  and  subscribing  the  oath  thereinbefore  appointed  and  set 
forth,  instead  of  the  oath  of  allegiance,  supremacy  and  abjuration  ;  but  not  to 
vote  or  join  in  the  election  or  appointments  of  any  person  to  any  ecclesiastical 
benefice,  office  or  place  whatsoever,  or  to  any  office  in  the  established  church, 
'  ecclesiastical  courts,  universities,  colleges  or  schools;  and  that  no  Roman 
catholic  should  advise  the  crown  in  the  appointment  of  ecclesiastical  offices. 

Sections  19,  20  £ind  21  prescribe  the  time  and  place  in  which  the  oaths 
should  be  taken,  and  the  penalties  of  acting  in  such  office  without  taking  the 
oaths. 

Section  22  enac^,  that  the  oath  thereinbefore  appointed  should  be  taken  by 
Roman  catholic  officers  in  his  majesty's  land  and  sea  service,  and  no  other 
required  from  them. 

Section  23  enacts,  that  no  oath  shall  be  required  from  Roman  catholics  for 
enabling  them  to  hold  their  real  and  personal  property,  other  than  such  as  may 
be  by  law  required  from  his  majesty's  other  subjects  :  and_^that  the  oath  therein 
appointed  shall  be  of  the  same  force  and  effect,  to  all  intents  and  purposes,  as, 
and  shall  stand  in  the  place  of,  all  oaths  and  declarations  required  or  pre- 
scribed by  any  law  then  in  force  for  the  relief  of  his  majesty's  Roman  catholic 
subjects,  from  any  disabilities,  incapacities  or  penalties. 

Sections  24  and  25  enact,  that  persons  not  authorized  by  law  shall  not 
assume  the  name,  style  or  title  of  archbishop,  bishop,  or  dean,  in  England  or 
Ireland,  under  the  penalty  of  100?. ;  and  that  persons  in  judicial  or  civil  affairs 
in  England  or  Ireland,  shall  not  attend  any  place  of  worship,  except  those  of 
the  established  church,  with  the  ensigns  or  habits  of  such  office,  under  the 
penalty  of  100?. 

Section  26  imposes  a  penalty  of  50?.  on  any  Roman  catholic  ecclesiastic, 
and  every  member  of  any  Roman  catholic  order,  community  or  society,  who 
shall  exercise  their  rights,  or  wear  their  habits,  except  within  their  usual  place 
of  worship,  or  in  private  houses. 

Section  27  declares,  that  nothing  in  the  act  shall  repeal  the  provisions  in  the 
act  of  the  fifth  year  of  his  majesty  king  Greorge  the  4th,  respecting  burials. 

Sections  28,  29,  30,  31  and  32  enact,  that  the  members  of  religious  com- 
munities then  within  the  united  kingdom,  should,  within  six  calendar  months, 
deliver  to  the  clerk  of  the  peace  of  the  county,  a  notice  or  statement,  in  the 

form, 

(1)  The  policy  and  justice  of  our  laws  of  forfeiture  in  this  respect  are 
most  ably  discussed  in  Mr.  Yorke's  celebrated  Considerations  on  the  Law  of 
Forfeiture. 


491.  b.J         Of  Warrantie,   L.  3.  C.  13.  Sect.  746,  747. 

Sect.  746. 

A  LSO,  if  tenant  iu  taile  he  disseised,  and  after  make  a  release  to  the 
disseisor  tvith  warrantie  in  fee,  and  after  the  tenant  in  taile  is  attaint, 
or  outlawed  of  felony,  and  hath  issue  and  dieth  ;  in  this  case  the  issue  in 
taile  7nay  enter  upon  the  disseisor.  Aiid  the  cause  is  for  this,  that  nothing 
maketh  discontinuance  in  this  case  hut  the  ivarrantie,  and  warrantie  may 
7iot  descend  to  the  issue  in  taile,  for  this,  that  the  hloud  is  corrupt  hettveen 
him  that  made  the  warrantie  and  the  issue  in  taile  (Et  la  cause  est  pur 
ceo,  que,  *  rien  fait  discontinuance  en  cest  case  forsque  le  garrantie,  et 
garrantie  ne  poit  discender  al  issue  en  taile,  pur  ceo,  que  le  sanke  est 
corrupt  perenter  celuy  que  fist  le  garrantie  et  issue  en  taile). 


Sect.  747. 

TpOR  the  ivarrantie  alwayes  ahideth  at  the  common  law,  and  the  com- 
mon law  is  such,  that  when  a  man  is  attaint  or  outlawed  of  felony, 
which  outlawrie  is  an  attainder  in  lata,  that  the  hloud  hetween  him  and 
his  soniie,  and  all  others  which  shallhee  said  his  heires,  is  corrupt,  so  that 
nothing  by  discent  may  descend  to  any  that  may  hee  said  his  heire  hy  the 
common  laiv  (Car  le  garranty  touts  foits  demurt  a  le  common  ley,  et  la 

common 

*  nul  added  in  L.  and  M.  and  Roh. 

form  and  containing  the  particulars  required,  to  be  set  forth  in  the  schedule  to 
that  act,  under  the  pain  of  forfeiting  to  his  majesty,  for  every  calendar  month 
during  which  he  shall  have  neglected  so  to  do,  the  sum  of  50Z. ;  and  that  if 
any  Jesuit  or  member  of  any  religious  society  shall  come  into  the  realm,  he 
shall  be  guilty  of  a  misdemeanor,  and  banished.  But  natural-born  subjects, 
being  Jesuits  or  members  of  any  other  religious  order,  may  return  to  the 
kingdom,  and  be  registered;  and  his  majesty's  principal  secretaries  of  state 
may  grant  licences  to  Jesuits  and  members  of  other  religious  orders  to  come 
into  the  kingdom,  and  revoke  the  same. 

Sections  oo,  84,  35,  36  and  37  make  the  administration  of  persons  to  be 
members  of  such  religious  orders  a  misdemeanoi",  and  subjects  the  persons  so 
admitted,  to  certain  penalties,  but  exempt  from  them  the  members  of  female 
communities. 

Section  38  prescribes  the  manner  in  which  the  penalties  inflicted  by  the 
act  may  be  recovered. 

IT  is  apprehended,  that  the  preceding  statement  sufficiently  shows  that,  with 
the  exception  of  the  offices  and  rights  from  which  they  are  excluded  by  the  act 
of  the  2'J  of  King  George  the  3d,  the  Roman  catholics  are  nearly  entitled  to 
the  same  civil  rights  as  his  majesty's  protestant  subjects;  but  there  yet  is 
some  confusion  and  uncertainty  respecting  the  oaths  which  they  must  take  to 
enable  them  to  hold  their  real  property.  They  are  yet  disabled  from  pre- 
senting to  advowsons,  from  establishing  foundations  for  their  religious  worship 
and  education ;  and  still  subject  to  penalties  of  the  acts  of  3  Charles  1.  ch.  2, 
and  2  &  3  James  1.  for  sending  persons  abroad  for  education,  or  converting 
them  to  popery ;  and  they  are  still  obliged  to  receive  the  sacrament  and  take 
the  oath  of  supremacy  on  their  being  naturalized.  It  has  also  been  sug- 
gested, that  in  some  cases  they  have  not  been  relieved  from  the  double 
land-tax. 


L.  3.  C.  13.  Sect.  747.    Of  Warrantie.    [391.  b.  392.  a. 

common  ley  est,  f  ove  quant  home  est  attaint  ou  utlage  de  felonie, 
quel  utlagarie  esi  un  attainder  en  ley,  que  le  sanke  perenter  luy  et  son 
fits,  et  touts  auters  queux  scrra  dits  ses  heires,  est  corrupt,  issint  que  ^ 
riens  per  discent  poit  discender  a  ascun  que  poit  estre  dit  son  heire  per 
le  common  ley.)  And  the  wife  of  such  a  man  that  is  so  attaint,  shal 
never  he  endowed  of  the  tenements  of  her  husband  so  attainted.  And  the 
cause  is,  for  that  men  should  more  eschew  to  commit  felonies. %  But  the 
issue  in  taile  as  to  the  tenements  tailed  is  not  iti  such  case  barred,  be- 
cause hee  is  inheritable  by  force  of  the  statute,  and  not  by  the  course  of  the 
common  law  (Mes  Tissue  en  tayle  quant  a  les  tenements  tailes  n'est  pas  en 
tiel  cas  §  barre,  pur  ceo  que  1|  est  inherite  per  force  de  la  statute,  et 
nemy  per  le  course  de  common  ley) :  and  therefore  such  attainder  of  his 
father  or  of  his  ancestour  in  the  tailed,  shall  not  put  him  out  of  his 
right  by  force  of  the  tayle,  ^e. 

"  rpiIE  issue  in  taile  may  enter."     And  the  reason  is,  for  that 
by  the  attainder  of  the  father,  it  is  now  in  judgement  of 
law  but  a  release  without  warrantie ;  for  albeit  the  warrantie  at  (Plowd.  252.  a. 
the  time  of  the  release  was  effectuall,  yet  it  worketh  no  discon-  3  Inst.  241.) 
tinuance  unlesse  it  descendeth  upon  the  issue  in  taile  ;  so  as  if 
it  be  defeated,  extinct,  or  determined  in   the  life  of  the  tenant 
in  taile,  then  no  discontinuance  is  wrought :  and  so  it  is  if  tenant 
in  taile  hath  issue,  and  releaseth  to  the  disseisor  with  warrantie, 
and  after  is  attainted  of  felonie,  and  after  obtaineth  his  pardon 
and  dieth,  the  issue  in  taile  may  enter ;  [*]  for  the  pardon  doth  [*]  27  E.  3. 77. 
not  restore  the  bloud  as  to  the  warrantie,  nor  maketh  the  issue  ^  ^- 1-  ^^ 
in  that  case  inheritable  to  the  warrantie.    But  if  the  issue  in  taile  9  jj  5  9/ 
in  that  case  had  been  attainted  of  felonie  in  the  life  of  the  father,  31  E.  1. 

and  obtained  his  charter  of  pardon,  and  then  his  father  Pi  p°  o*'  ^^' 

[39Q."j  had  died,  the  issue  cannot  enter  into  the  Jg®""  land  in  pg^j^  20. 
a.      J  respect  of  the  corruption  of  bloud  upon  the  attainder  26  Ass.  2. 
of  himselfe.  [/t]  And  it  is  a  generall  rule,  that  having  49  Ass.  4. 
respect  to  all  those  whose  bloud  was  corrupted  at  the  time  of  the  jg  ^\  g' 
attainder,  the  pardon  doth  not  remove  the  corruption  of  bloud,  13  H.  7. 17. 
neither  upward  nor  downward.     As   if  there  be  grandfather,  ^J- *^!""-^"  , 
father  and  sonne,  and  the  grandfather  and  father  have  divers  case!'"!  E.V 
other  sonnes,  if  the  father  be  attainted  of  felonie  and  pardoned,  Discent,  I3r.  64. 
yet  doth  the  bloud  remaine  corrupted  not  onely  above  him  and  Staunf.  ri.  Cor. 
about  nim,  but  also  to  all  his  children  borne  at  the  time  of  his  J^^theSapSr 
attainder.     But  in  the  case  of  Littleton,  if  tenant  in  taile  at  the  ofTenant  by  tho 
time  of  his  attainder  had  no  issue,  and  after  the  obtaining  of  his  Curtesie,  touch- 
pardon  had  issue,  that  issue  should  have  beene  bound  by  the  Jpf^'^j'  Tbl^Z' 
warrantie;  for  by  the  pardon  he  was  as  a  new  creature,  tanquam  Ante  8.  a.) 
filius  <errcc,  whose  bloud  upwards  remaine  corrupted;  but  for  [/(]  Bract. lib.  3. 
the  issue  had  after  the  pardon,  hee  is  inheritable  to  his  father;  27V&  Hb^s" 
and  if  his  father  had  issue  before  the  pardon,  and  hath  issue  also  374'    uritt/ 
after  and  dieth,  nothing  can  descend  to  the  youngest,  for  that  ful.  2l5.b. 
the  eldest  is  living  and  disabled.     But  if  the  eldest  sonne  had  ^''''•gg^-  ^• 
died  in  the  life  of  the  father  without  issue,  then  the  youngest  (i^cro.'435. 
should  inherit.  Ant.  8.  a.) 

"  Tlie 

f  tiel  added  in  L.  and  31.  and  Roh.         §  barre  not  in  L.  and  M.  or  Rah. 
1  nul  added  in  L.  and  M.  and  Roh.  \\  il  added  in  L.  and  M.  and  Roh. 

I  &c.  added  in  L.  and  M.  and  Roh.       '       "H  d'c.  added  in  L.  and  M.  and  Roh. 


392.  a.  392.  b.J     Of  Warrantie.     L.  3.  C.  13.  Sect.  747. 


Vid.  Sect.  711, 
712. 


(8  Rep.  171. 
Ante,  31.  a. 
37.a.  41.  a.) 
(Lamb.  275. 

276.) 

(3  Inst.  17.  47. 

Ant.  41.  a.) 


[i]  5E.3.14. 
9  E.  3.  22. 
[k]  7  H.  4.  32. 
19  H.  6.  71. 
See  Lit.  lib.  1. 
cap.  Dow. 
Sect.  55. 

(7  Rep.  11.) 
[l]  26  H.  8. 
cap.  13. 
33  H.  8.  c.  20. 
5E.  6.  ca.lL 


[m]  Staunf.  PL 
Cor.  1U5. 


[»]  1  E.  6.  c.  13. 

5  E.6.C.  11. 

6  EL  ca.  1  & 
11. 18  El.  ca.  1. 
12  H.  4.  3. 
Vide  Sect.  55. 
(8  Rep.  171.) 
[o]  6  H.  4. 1. 
45  E.  3. 
Vouch.  72. 

PI.  Com.  292. 
16  E.  3.  Age,  46. 
18  H.  3. 
Vouch.  281.     23 


"  The  tcarrantie  abideth  at  the  common  laio."  The  collaterall 
warrantie  is  not  restrained  by  the  statute  of  donis  conditionalibus, 
but  a  lineall  warrantie  is  restrained  by  the  statute,  unlesse  there 
be  assets ;  as  formerly  at  large  hath  beene  said. 

"And  the  wife  of  such  a  man  that  is  so  attaint,  shal  never  he 
endoioed,  &c."  It  is  to  be  observed,  that  the  judgement  against 
a  man  for  felonie  is,  that  he  be  hanged  by  the  neck  uatill  he  be 
dead  j  hwt  implicative,  (as  hath  beene  said)  he  is  pun- 
ished JEt^"  first  in  his  wife,  that  she  shall  lose  her  r393.1 
dower.  Secondly,  in  his  children,  that  they  shall  be-  L  b-  J 
come  base  and  ignoble;  as  hath  beene  said.  Thirdly, 
that  he  shall  lose  his  posteritie,  for  his  bloud  is  stained  and  cor- 
rupted, that  they  cannot  inherit  unto  him  or  any  other  ancestor. 
Fourthly,  that  he  shall  forfeit  all  his  lands  and  tenements  which 
he  hath  in  fee,  and  which  he  hath  in  taile,  for  terme  of  his  life. 
And  fifthly,  all  his  goods  and  chattels.  And  thus  severe  it  was 
at  the  common  law ;  and  the  reason  hereof  was,  that  men  should 
feare  to  commit  felonies:  Ut poena  ad paucos,  metus  ad  omnes 
perveniat.  And  it  is  truly  said,  Etsi  meliores  sunt  quos  ducit 
amor,  tamen  plures  sunt  quos  coreiyit  timor.  And  so  it  is  a  for- 
tiori in  case  of  high  treason.  But  some  acts  of  parliament  have 
altered  the  common  law  in  some  of  those  points  :  first,  by  the 
statute  of  de  donis  conditionalibus,  lands  intailed  were  not  for- 
feited neither  for  felonie  nor  for  treason,  but  for  the  life  of  tenant 
in  taile.  This  act  was  made  by  king  Edioard  the  first,  who  (as 
our  bookes  [«']  speake)was  the  most  sage  king  that  ever  was  :  [A;] 
and  the  cause  wherefore  this  statute  was  made,  was  to  preserve 
the  inheritance  in  the  bloud  of  them  to  whom  the  gift  was  made, 
notwithstanding  any  attainder  of  felonie  or  treason.  And  this 
act  in  historic  is  GViXXQ^igentilitium  municipale  ;  for  that  by  this 
act  the  families  of  many  noblemen  and  gentlemen  were  continued 
and  preserved  to  their  posterities.  And  this  law  continued  in 
force  from  the  thirteenth  yeare  of  king  Edward  the  First,  untill 
the  [11  twentie-sixth  yeare  of  king  Henrie  the  Eighth,  when  by 
act  of  parliament  estates  in  taile  are  forfeited  by  attainder  of  high- 
treason.  But  as  to  felonies  (whereof  our  author  here  speaketh) 
the  statute  of  donis  conditionalibus  doth  yet  remain  in  force,  so 
as  for  attainder  of  felonie,  lands  or  tenements  entailed  are  not  for- 
feited, but  only  (as  hath  beene  said)  during  the  life  of  tenant  in 
taile,  but  the  inheritance  is  preserved  to  the  issues. 

[hi]  The  wife  of  a  man  attainted  of  high  treason  or,  petit 
treason  shall  not  be  received  to  demand  dower,  unlesse  it  be  in 
certaine  cases  specially  provided  for.  But  the  wife  of  a  person 
attainted  of  misprision  of  treason,  murther,  or  felonie,  is  dowable 
since  our  author  wrote,  [//.]  by  the  statute  in  that  case  made  and 
provided,  which  is  more  favourable  to  the  woman  than  the  com- 
mon law  is. 

[o]  If  a  seigniorie  be  granted  with  warrantie,  and  the  tenancie 
escheat,  the  seigniorie  whereunto  the  warra'ntie  was  annexed  is 
extinct,  and  consequently  the  warrantie  defeated,  and  it  shall  not 
extend  to  the  land  :  et  sic  de  similibus. 

If  a  collaterall  ancestor  release  with  warrantie,  and  enter  into 
religion,  now  the  warrantie  doth  binde ;  but  if  after  he  be  de- 
raigned,  now  it  is  defeated. 
E.  3.  Garr.  77.     See  in  the  Chapter  of  Villenage,  Sect.  200. 

Sect. 


L.  3.  C.  13.  Sect.  748.  Of  Warrantie.        [392.  b.  393.  a. 

Sect.  748. 

J^LSO,  if  tenant  in  taile  infeoffe  his  uncle,  which  infeoffes  another  in 
fee  ivith  warrantie,  if  after  the  feoffee  hy  his  deed  release  to  his 
uncle  all  manner  of  warrantie,  or  all  manner  of  covenants  realls,  or  all 
manner  of  demands,  hy  such  release  the  warrantie  is  extinct.  And  if 
the  warrantie  in  this  case  bee  pleaded  against  the  heire  in  taile  that 
bring eth  his  writ  of  formedon,  to  barre  the  heire  of  his  action,  if  the 
heire  have  and  plead  the  said  release,  ^c.  (si  I'heire  avoit*  le  dit  releas 
et  ceo  pledast)  he  shall  defeat  the  plee  in  barre,  ^c.  And  many  other 
cases  and  matters  there  be,  whereby  a  man  may  defeat  a  warrantie,  ^c- 

TITTLETON  having  spoken  in  what  cases  warranties  may    (i  Rep.  112.  b.) 

bee  defeated  and  extinguished  by  matter  in  law,  now  he 
sheweth  how  a  warrantie  may  be  discharged  or  defeated  by  a 
matter  in  deed :  and  hereupon  he  putteth  an  example  of  a  re-  (5  Rep.  71.  a.) 
lease  in  three  severall  manners. 
First,  by  a  release  of  all  warranties.  S'^iss^'isi 

Secondly,  by  a  release  of  all  covenants  reall.  Altham's  case. 

46  E.  3.  2.    45  E.  3.  23.    Vid.  before  in  the  Chapter  of  Releases,  Sect.  508. 

And  thirdly,  by  a  release  of  all  demands.  (Ant.  291.  b.) 

[2]  If  a  man  make  a  gift  in  taile  with  warrantie,  this  warrantie  [?]  14  Ass.  pi.  2. 

is  also  intailed,  and  therefore  a  release  made  by  tenant  in  taile  p^er^'igg 

of  the  warrantie,  shall  not  barre  the  issue,  no  more  than  his  re-  9  e.  4.  52."  b. 

lease  shall  bar  the  issue  to  bring  an  attaint  upon  a  (Plowd.  2.  b. 

[393.1  false  verdict,  or  a  writ  of  error  upon  an  erroneous  Ant^^stg  T^^' 

a.     J  Jg@°"judgement  given  against  the  father,  nor  his  gift  20°  a.  6  Rep.  7.) 
can  barre  the  issue  of  the  deed  that  create  the  estate 
taile,  nor  of  any  other  deed  necessary  for  defence  of  the  title. 

^'' After  tlie  feoffee  release."     Littleton  here  putteth   his  case  (5  Rep.  70.) 
where  one  is  bound  to  warrant :  put  the  case  [r]  then  that  two  [r]  45  e.  3.  23. 
make  a  feoffement  in  fee,  and  warrant  the  land  to  the  feoffee  and  (3  Rep.  14.) 
his  heires,  and  the  feoffee  release  to  one  of  the  feoffors  the  war- 
rantie, yet  he  shall  vouche  the  other  for  the  moytie.     And  so 
it  is  if  one  infeoffe  two  with  warrantie,  and  the  one  release  the 
warrantie,  yet  the  other  shall  vouch  for  his  moytie. 

"  jy"  the  heire  have  the  said  release,  &c."  Here  it  appeareth, 
that  the  release  being  made  to  the  uncle  being  his  ancestor,  the 
deed  doth  after  the  decease  of  the  uncle  belong  to  him,  and 
therefore  he  cannot  plead  it,  unlesse  he  sheweth  it  forth. 

"And  many  other  cases  and  matters  there  be,  whereby  a  man  (Vaugh.  307.) 
may  defeat  a  warrantie,  &c."     As  namely  by  a  defeasance,  as  43  E.  3.  17.  PI. 
other  things  executorie  may.     Also  a  warrantie  may  lose  his  9°^'  *°  Brown- 
force  by  taking  benefit  of  the  same.     In  a  prcecipe  the  tenant 
voucheth,  and  at  the  sequatur  sub  suo  pericido,  the  tenant  and 
the  vouchee  make  default,  whereupon  the  demandant  hath  judge- 
ment against  the  tenant.    And  afterwards  the  demandant  brings 
a  scire  facias  against  the  tenant  to  have  execution ;  in  this  case 
the  tenant  may  have  a  warrantia  carta:.     And  if  in  that  case  a 

stranger 

*  le  dit  releas  et  ceo  pledast— et  pledast  le  dit  releas,  &c.  in  L.  and  M. 
Vol.  II.— 49 


393.  a.  393.  b.]     Of  Warrantie.    L.  3.  C.  13.  Sect.  749. 

stranger  had  brought  a  procci^je  against  the  tenant,  he  might  have 
vouched  againe,  for  by  the  judgment  given  against  the  tenant, 
the  warranty  lost  not  his  force ;  but  if  the  tenant  had  judgment 
(Hob.  27.)  to  recover  in  value  against  the  vouchee,  hee  should  never  vouche 

againe  by  reason  of  that  warrantie,  because  he  had  taken  advan- 
tage of  the  warrantie.  And  it  is  to  be  observed,  that  upon  the 
proces  of  summoneas  ad  warrant izandum,  if  the  sherife  returne 
the  vouchee  summoned,  and  he  make  default,  the  tenant  shall 
have  a  capias  ad  valentiam  ;  but  if  he  returne  that  the  vouchee 
had  nothing,  then  after  the  sicut  alias  et  jyluries  a  sequatur  sub 
suo  pericido  shall  issue ;  and  there  if  the  vouchee  make  default 
the  tenant  shall  not  have  judgment  to  recover  in  value,  for  he 
was  never  summoned ;  and  it  appeareth  of  record  that  he  hath 
nothing,  but  in  the  capias  ad  valentiam  it  appeareth  that  he 
had  assets,  and  he  had  been  summoned  before ;  but  in  some 
speciall  cases  there  shall  be  two  recoveries  in  value  upon  one 
warrantie.  As  if  a  disseisor  give  lands  to  the  husband  and  wife, 
and  to  the  heirs  of  the  husband,  the  husband  alieneth  in  fee 
with  warrantie  and  dieth,  the  wife  bringeth  a  cui  in  vita,  the 
tenant  vouche  and  recovereth  in  value,  if  after  the  death  of  the 
wife  the  disseisee  bring  a  prcecipe  against  the  alienee,  he  shall 
vouche  and  recover  in  value  againe. 
[»]  45  E.  3.  [s]  So  it  is  where  the  wife  bringeth  a  writ  of  dower  against  the 

Voucher,  72.       alienee,  he  shall  recover  in  value,  and  after  her  death  he  shall 

recover  in  value  againe,  upon  the  same  warrantie. 
(Hob.  28.)  In  the  same  manner  it  is  if  a  man  be  seised  of  a  rent  by  a  de^ 

feasible  title,  and  releaseth  to  the  tenant  of  the  land  all  his  right  in 
the  land,  and  warranteth  the  land  to  him  and  his  heires,  if  he  b^ 
impleaded  for  the  rent,  he  shall  vouch  and  recover  in  value  for 
the  rent;  and  if  after  he  be  impleaded  for  the  land,  he  shall  vouche 
and  recover  in  value  againe  for  the  land  :  but  in  these  and  the  like 
cases,  the  reason  is  in  respect  of  the  severall  estates  recovered,  but 
for  one  and  the  same  estate  he  shall  never  recover  but  once  in 
(Ant.  3G7.  b.)      value;  and  though  the  land  recovered  in  value  be  evicted,  yet 
shall  he  never  take  benefit  of  that  warrantie  after.     And  as  war- 
ranties may  be  defeated  in  the  whole,  so  they  may  be  defeated 
[t]  7  H.  6.  43.      ^s  to  part  of  the  benefit  that  may  be  taken  of  the  same.     [<]  As 
]3  Ass.  8.  he  that  hath  a  warrantie  may  make  a  defeasance  not  to  take  any 

94  ■^V^oi?^"'  benefit  by  way  of  voucher :  in  the  like  manner  that  he  shall  take 
22' H.  6. 5*1.  110  advantage  by  way  of  warrantia  carta;,  or  by  way  of  rebutter. 
8H.  7.  6. 

fi^  Sect.  749.  Pf^-] 

A  ND  it  is  to  he  understood,  that  in  the  same  manner  as  the  collaterall 
warrantie  may  hee  defeated  hy  matter  in  deed  or  in  law;  in  the 
same  manner  may  a  lineall  warrantie  he  defeated,*  ^c.  For  if  the 
heire  in  taile  hringeth  a  writ  of  formedon,  and  a  lineall  warrantie  of 
his  ancestor  inheritable  hy  force  of  the  taile,  hee  pleaded  against  him, 
with  this,  that  assets  descended  to  him  of  fee  simple,^  ivhieh  he  hath  by 
the  same  ancestor  that  made  the  warrantie  ;  if  the  heire  that  is  demand- 
ant may  adnull  and  defeat  the  warrantie,  that  sufficeth  him ;  for  the 
discent  of  other  tenements  of  fee  simple  maJceth  nothing  to  barre  the 

heire  without  the  warrantie,  (fc 

HERE 

*  &c.  not  in  L.  and  M.  or  Rob.  f  ivhicJi  he  hath,  not  in  L.  and  M. 

or  Roh. 


L.  3.  C.  13.  Sect.  749.     Of  Warrantie.      [393.  b.  394.  a. 

HERE  Littleton  sheweth,  that  in  the  same  manner  that  a  col- 
lateral! warrantie  may  be  defeated  by  matter  in  deed,  or  by 
matter  in  law,  so  may  to  all  intents  and  purposes  a  lineall  war- 
rantie, whereof  hee  putteth  an  example  of  a  lineall  warrantie 
and  assets. 

^'  And  a  lineall  loarranfie,  &c.  with  this,  that  assets  descended  Tomps  E.  1. 
to  him,  &c."    Here  it  appeareth  by  Littleton,  that  a  lineall  war-  ?fl;  ^f:,., 
rantie  and  assets  is  a  good  plea  in  a/ormedon  in  the  discender;  n^'  2! ibid!  83* 
wherein  it  is  to  be  knowen,  that  if  tenant  in  taile  alieneth  with  4  E.  3.  24. 
warrantie,  and  leave  assets  to  descend;  if  the  issue  in  taile  doth  ^^'^:  ^'^' 
alien  the  assets,  and  die,  the  issue  of  that  issue  shall  recover  the  ^4  jj'  4  3*9 
land,  because  the  lineal  warrantie  descendeth  only  to  him  with-  24  H.  8.  Taile, 
out  assets;  for  neither  the  pleading  of  the  warrantie  without  the  ^^.-  23-  4 Mar. 
assets,  nor  the  assets  without  the  warrantie  is  any  barre  in  the  Lib^'io  fol  37 
formedon  in  the  discender.     But  if  the  issue  to  whom  the  war-  38.  in  Mary 
rantie  and  assets  descended  had  brought  a  formedon,  and  by  Portington's 
judgement  had  beene  barred  by  reason  of  the  warrantie  and  assets;  ^g^^ep  51  \ 
in  that  case,  albeit  he  alieneth  the  assets,  yet  the  estate  taile  is  (Ant.  374.  a.  b.) 
barred  for  ever;  for  a  barre  in  di  formedon  in  the  discender,  which  (lo  Rep.  38. 
is  a  writ  of  the  highest  nature  that  an  issue  in  taile  can  have,  is  ijX*40^*'''  *'  ^ 
a  good  barre  in  any  other  formedon  in  the  discender,  brought  Moor,  55.) 
afterwards  upon  the  same  gift. 

1\J'0W  Ihave  made  to  thee,  my  sonne,  three  bookes. 

"  Y^  0  thee,  my  sonne,  &c."  Here  our  author  calleth  (as  many 
times  in  these  bookes  he  hath  done)  not  only  his  sonne 
Richard,  but  everie  studient  of  the  law  to  be  accounted  his  son, 
and  worthily ;  for  that  seeing  our  author  had  the  honour  to  be  in 
his  time  the  father  of  the  law,  and  all  good  studients  in  the  law 
justly  account  themselves  thesonnes  of  the  law  (for  otherwise  they 
are  not  worthy  of  the  profession),  our  author,  as  a  carefull  and 
provident  father,  as  it  hath  manifestly  appeared,  gave  excellent 
instructions  in  these  his  bookes,  both  to  his  owne  sonne,  and  to 
his  adopted  sonnes,  to  make  them  from  age  to  age  the  more  apt 
and  able  to  understand  the  arguments  and  reasons  of  the  law. 


^^-^•1  m-  Tabula, 


The  first  Booh  is  of  estates  which  men  have  in  lands  and  tenements 
(Le  primer  Livre  est  de  Estates  que  homes  ount  en  terres  *  ou  tene- 
ments) :  that  is  to  say, 

Of  Tenant  in  fee  simple  ff  Cap.  1 

Of  Tenant  in  fee  taile  2 

Of  Tenant  in  f  fee  taile  after  possibilitie  of 
issue  extinct  3 

Of  Tenant  hy  the  curtesie  of  England  4 

Of 

*  ou — et,  L.  and  M.  and.  Roh.  L.  and  M.  or  Roh. 

ff  The  numbers  of  the  Chapters  as         f /ee — the,  L.  and  M.  and  Roh. 
above  are  no:|  enumerated  either  in 


394.  a.  394.  b.]  Tabula. 

Of  Tenant  in  dower  6 

Of  Tenant  for  terme  of  life  6 

Of  Tenant  for  terme  of  years  7 

Of  Tenant  at  will  hy  the  common  law  8 

Of  Tenant  at  will  hy  custome  of  the  manner   9 
f  0/"  Tenant  by  the  verge  10 

The  Second  Book  § . 

Of  Homage  Cap.  1 

OfFealtie  2 

Of  Escuage  3 

Of  Knights  Service  4 

Of  Socage  5 

Of  Frankalmoigne  6 

Of  Homage  Auncestrel          -  7 

Of  Grand  Serjeantie  8 

Of  Petit  Serjeantie  9 

Of  Tenure  in  Burgage  10 

Of  Tenure  in  Villenage  11 

Of  t  Bents  12 

-Aw(?  <Aesg  two  little  Books  I  have  made  to  thee  for  the  better  under 
standing  ofeertaine  Chapters  of  the  antient  Book  of  Tenures- 

"  jyETTER  understanding,  d-c."     And  these  Institutes  have 
I  collected  and  published  to  the  end  that  these  three 
Bookes  of  our  author  may  be  the  better  understood  of  the  stu- 
dious reader. 


N.  B. 


Fitz.  in  his  "  Antient  Boohe  of  Tenures."     This  booke  may  well  be  ac- 

Preface  to  his      counted  antient,  for  it  was  composed  in  the  raigne  of  king 

Edward  the  Third,  (as  justice  Fitzherhert  saith)  by  a  grave  and 

discreet  man. 


The  Third  Booh  t 

Of  Parceners  \\  according  to  the  course  of  the 

common  law  Cap.  1  ["394.1 

\.  Of  Parceners  according  to  the  custome  2  L    ^-    J 


Of  Joyntenants  3 

Of  T[  Tenants  in  common  4 


Of 


J  Of  tenant  by  the  verge,  not  in  L.  ||  according   to  the   course   of   the 

and  M.  or  Roh.  common  laio,  not  in  L.  and  M.  and 

§  is  added  in  L.  and  M.  and  Roh.  Roh. 

f  Rents — iii.  manner  of  rents,  sei-  \.  Of  parceners  according  to  the  cus- 

licet,  ren^  service,  rent  charge,  and  rent  tome,  not  in  L.  and  M.  or  Roh. 

secke,  L.  and  M.  and  Roh.  ^  Tenants — tenements,  L.  and    M. 

J  is  added  in  L.  and  M.  and  Roh.  and  Roh. 


Tabula.  [394.  b.  395.  a. 

Of  Estates  of  lands  and  tenements  upon  con- 
dition 5 
Of  Discent  which  toll  entries  6 
Of  Continual  Claime  7 
Of  Releases  8 
Of  Confirmations  9 
Of  Attornements  10 
Of  Discontinuances  11 
Of  Remitters  12 
Of  Warranties^  §  13 

*  Epilogus, 

AND  know,  my  son,  that  I  would  not  have  theeheleeve,  that  all  which 
I  have  said  in  these  booJces  is  law,  for  I  will  not  presume  to  take  this 
upon  me.  But  of  those  things  that  are  not  law,  inquire  and  learne  of 
my  wise  masters  learned  i?i  the  latu.  Notwithstanding  albeit  that  cer- 
taine  things  which  are  moved  and  specified  in  the  sayd  bookes,  are  not 
altogether  law,  yet  such  things  shall  make  thee  more  apt,  and  able  to 
understand  and  apprehend  the  arguments  and  the  reasons  of  the  law, 
^c.  For  by  the  arguments  and  reasons  in  the  law,  a  man  more  sooner 
shall  come  to  the  certaintie  and  knowledge  of  the  law- 
hex  plus  laudatur  quando  ratione  probatur. 

"  T  WILL  not  presume,  c&c."  Here  observe  the  great  modestie 
and  mildness  of  our  author,  which  is  worthy  of  imitation ; 
for  Nulla  virtus,  nulla  scientia  locum  siium  et  dignitatem  con- 
servare  potest  sine  modestid.  And  herein  our  author  followed 
the  example  of  Moses,  who  was  a  judge,  and  the  fii'st  writer  of 
law  5  for  he  was  mitissimus  omnium  hominum  qui  fuit  in  terris, 
as  the  holy  historic  testifieth  of  him. 

"  That  arguments  and  reasons  in  the  law,  &c."  Ratio  est  anima 
legis  ;  for  then  are  we  said  to  know  the  law,  when  we  apprehend 
the  reason  of  the  law ;  that  is,  when  we  bring  the  reason  of  the 
law  so  to  our  owne  reason,  that  wee  perfectly  understand  it  as  our 
owne  :  and  then,  and  never  before,  we  have  such  an  excellent  and 
inseperable  propertie  and  ownership  therein,  as  wee  can  neither 
lose  it,  nor  any  man  take  it  from  use,  and  will  direct  us  (the  learn- 
ing of  the  law  is  so  chained  together)  in  many  other  cases.  But 
if  by  your  studie  and  Industrie  you  make  not  the  reason 

t395."]  of  the  law  your  owne,  it  is  not  possible  for  you  B^" 
a.  J  long  to  retaine  it  in  your  memorie.  And  wel  doth  our 
author  couple  arguments  and  reasons  together.  Quia 
argumenta  ignota  et  ohscura  ad  lucem  7-ationis profcrunt  et  red- 
dunt  splendid  a;  and  therefore  argumentari  et  ratiociiiari  are 
many  times  taken  for  one.  And  that  our  author  may  not  speake  any- 
thing without  authority,  (which  in  these  Institutes  we  have  as  we 

take 

I  scilicet,  warrantie  lineall,  warrantie         *  Not  in  L.  and  M.  or  Roh. 
collaterall,  and  warrantie  that  commence 
by  disseisin,  added  in  L.  and  M.  and  Roh. 


395.  a.]  Epilogus. 

take  it  manifested)  his  opinion  herein  also  agreeth  with  that  of 
the  learned  and  reverend  chiefe  justice  of  the  court  of  common 
[i/']  11  H.  4.  37.    pleas,  sir  Richard  Ilank/ord,  [?/]  Home  ne  scavera  de  quel  met- 
tcdun  campane  est,  si  ne  soit  hien  hate,  ne  le  ley  hien  conus  sans  dis- 
[*]  41  E.  3.  22.  putation.  And  another  saith,  [*]  Jeo  aye  dispute  cest  matter  pur  la 
v^*°s'     ^77     apprender  laley .  So  as  our  author  hath  made  a  most  excellent  epi- 
logue or  conclusion  with  a  grave  advice  and  counsell,  together  with 
the  reason  thereof,  which  all  good  students  are  to  know  and  follow ; 
and  with  scire  and  sequi  I  will  conclude  our  author's  epilogue. 

^^  Lex  plits  laudatur  quando  ratione  probatur." 

Vide  Sect.  384.        This  is  the  fourth  time  that  our  author  hath  cited  verses. 

443.  550. 

When  I  had  finished  this  worke  of  the  first  part  of  the  Insti- 
tutes, and  looked  backe  and  considered  the  multitude  of  the  con- 
clusions in  law,  the  manifold  diversities  between  cases  aud  points 
of  learning;  the  varietie  almost  infinite  of  authorities,  antient, 
constant  and  moderne,  and  withall  their  amiable  and  admirable 
consent  in  so  many  succession  of  ages ;  the  many  changes  and 
alterations  of  the  common  law,  and  additions  to  the  same,  even 
since  our  author  wrote,  by  many  acts  of  parliament,  and  that  the 
like  worke  of  Institutes  had  not  beene  attempted  by  any  of  our 
profession  whom  I  might  imitate,  I  thought  it  safe  for  me  to  fol- 
low the  grave  and  prudent  example  of  our  worthy  author,  not  to 
take  upon  me,  or  presume  that  the  reader  should  thinke  that  all 
that  I  have  said  herein  to  be  law  :  yet  this  I  may  safely  affirme, 
that  there  is  nothing  herein  but  may  either  open  some  windowes 
of  the  law,  to  let  in  more  light  to  the  student  by  diligent  search 
to  see  the  secrets  of  the  law,  or  to  move  him  to  doubt,  and 
withall  to  enable  him  to  inquire  and  learne  of  the  sages,  what  the 
law,  together  with  the  true  reason  thereof,  in  these  cases  is,  or 
lastly,  upon  consideration  had  of  our  old  bookes,  lawes,  and  re- 
cords, (which  are  full  of  venerable  dignitie  and  antiquitie)  to  finde 
out  where  any  alteration  hath  beene,  upon  what  ground  the  law 
hath  beene  since  changed;  knowing  for  certaine  that  the  law  is 
unknowen  to  him  that  knoweth  not  the  reason  thereof,  and  that 
the  knowne  certaintie  of  the  law  is  the  safetie  of  all.  I  had  once 
intended,  for  the  ease  of  our  student,  to  have  made  a  table  to 
these  Institutes  ;  but  when  I  consider  that  Tables  and  Abridge- 
ments are  most  profitable  to  them  that  make  them,  I  have  left 
that  worke  to  every  studious  reader.  And  for  a  farewell  to  our 
jurisprudent,  I  wish  unto  him  the  gladsome  light  of  jurispru- 
dence, the  loveliness  of  temperance,  the  stabilitie  of  fortitude, 
and  the  soliditie  of  justice. 


FINIS. 


For  the  Index,  seethe  beginning  of  the  First  Volume. 


COKE  UPON  LITTLETON,  IStii  Edition. 


NOTE. 

THE  Editor  begs  leave  to  suggest,  that,  in  the  Table  of  the  Degrees 
of  Parentage  and  Consanguinity,  after  fol.  18.  b.  the  words  ahpatruus 
magnus,  should  be  translated,  the  great  grandfather s  uncle,  on  the  father's 
side;  and  that,  the  words,  propatruus  magnus,  should  be  translated,  the 
father's  great  uncle,  or  the  grandfather' s  uncle,  on  the  father's  side;  and 
so,  as  to  the  rest. 

He  also  begs  leave  to  recommend  to  the  Header's  consideration,  the 
Table  of  Consanguinity,  and  the  Table  of  Descents,  in  Mr.  Watkins' 
Essay  towards  the  further  Elucidation  of  the  Law  of  Descents, — and  the 
whole  of  that  excellent  work. 


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